COTTTIT    OIF    OXi^^IIMIS. 


The  Cherokee  Nation 

The  United  States. 

The  Eastern  Cherokees 

The  United  States.  J 

The   Eastern  and  Emigrant  ] 
Cherokees  ' 

V. 

The  Ignited  States.  J 


No.  2319i).  1 


:-No.  23:^14. 


-No.  23212. 


r  Consolidated. 


findings  of  fact  and  conclusions  of  law— filed  may  18,  1905. 


findings  of  fact. 


The  above  con.solidated  causes  having-  come  on  to  be  heard  upon  the 
pleadinos  and  proofs,  and  having-  Ix'cn  argued  by  counsel,  were  sub- 
mitted to  the  court  for  its  decision,  and  the  court  being  now  here  suti]- 
ciently  advised  in  the  premises  finds  the  facts  as  established  ))v  the 
evidence  in  said  consolidated  causes  to  be  as  follows: 

I. 

Section  QS  of  the  act  of  Congress  of  July  1,  1902.  entitled  "'An  act 
to  provide  for  the  allotment  of  thi^  lands  of  the  Cherokee  Nation  and 
for  the  disposition  of  town  sites  therein  described,  and  for  other  pur- 
poses" (32  Stat.,  726),  is  as  follows: 

''Jurisdiction  is  hereby  conferred  upon  the  Court  of  Claims  to 
examine,  consider,  and  adjudicate,  with  a  right  of  appeal  to  the 
SupHMue  Court  of  the  United  Stat(\s  by  any  party  in  interest  feeling 
aggrieved  at  the  decision  of  the  Court  of  Claims,  any  claim  \\  hich  the 
Cherokee  ti'ibe,  or  anvband  thereof,  arising-  under  treaty  sti[)ulations. 
may  have  against  the  United  States,  upon  which  suit  shall  he  insti- 
tuted within  two  years  after  the  approval  of  this  act;  and  also  to 
examine,  consider,  and  adjudicate  any  claim  which  the  United  States 
may  ha\'e  against  said  ti"ibe.  or  any  band  thereof.  The  institution, 
prosecution,  or  defense,  as  th(>  ease  may  be,  on  the  part  of  the  tribe  or 
;-;  1405—00 1 


any  band,  of  any  such  suit,  shall  be  through  attorneys  employed  and 
to  1)0  compensated  in  the  manner  prescribed  in  sections  twenty-one 
hundred  and  three  to  twenty-one  hundred  and  six,  both  inclusive,  of 
the  Revised  Statutes  of  the  Ignited  States,  the  tribe  acting  through  its 
principal  chief  in  the  employment  of  such  attorneys,  and  the  band 
acting  through  a  committee  recognized  by  the  Secretary  of  the  Inte- 
rior. The  Court  of  Claims  shall  have  full  authority,  by  proper  orders 
and  process,  to  make  parties  to  any  such  suit  all  persons  whose  pres- 
ence in  the  litigation  it  may  deem  necessary  or  proper  to  the  final 
determination  of  the  matter  in  conti'oversy,  and  any  such  suit  shall,  on 
motion  of  either  party,  be  advanced  on  the  docket  of  either  of  said 
courts  and  be  determined  at  the  earliest  practicable  time.'' 

The  act  of  ^Slarch  3.  1903,  entitled  "An  act  making  appropriations 
for  the  current  and  contingent  expenses  of  the  Indian  Department  and 
for  fulfilling  treaty  stipulations  with  various  Indian  tribes  for  the  fiscal 
3'ear  ending  June  thirtieth,  nineteen  hundred  and  four,  and  for  other 
purposes"  (32  Stats..  996).  contains  the  following  provisions: 

""Section  sixty-eight  of  the  act  of  Congress  entitled  'An  act  to  pro- 
vide for  the  allotment  of  the  lands  of  the  Cherokee  Nation,  for  the 
disposition  of  town  sites  therein,  and  for  other  purposes,'  approved 
July  tirst.  nineteen  hundred  and  two.  shall  be  so  construed  as  to  give  the 
Eastern  Cherokees,  so  called,  including  those  in  the  Cherokee  Nation 
and  those  who  remained  east  of  the  Mississippi  River,  acting  together 
or  as  two  bodies,  as  the}"  may  be  advised,  the  status  of  a  band  or  bands, 
as  the  case  may  he,  for  all  the  purposes  of  said  sectionf  J^roricJcd, 
That  the  prosecution  of  such  suit  on  the  part  of  the  Eastern  Cherokees 
shall  be  through  attorneys  emploved  bj^  their  proper  authorities,  their 
compensation  for  expenses  and  services  rendered  in  relation  to  such 
claim  to  be  tixed  by  the  Court  of  Claims  upon  the  termination  of  such 
suit:  and  said  section  shall  be  further  so  construed  as  to  require  that 
both -the  Cherokee  Nation  and  said  Eastern  Cherokees,  so  called,  shall 
be  made  parties  to  any  suit  which  ma}"  l)e  instituted  against  the  United 
States  under  said  section  upon  the  claim  mentioned  in  House  of  Rep- 
resentatives Executive  Document  Numbered  Three  hundred  and  nine 
of  the  second  session  of  the  Fifty-seventh  Congress:  and  if  said  claim 
shall  be  sustained  in  whole  or  in  part,  the  Court  of  Claims,  subject  to 
the  right  of  appeal  named  in  said  section,  shall  be  authorized  to  ren- 
/der  a  judgment  in  favor  of  the  rightful  claimant,  and  also  to  determine, 
ij  as  between  the  ditlevent  claimants,  to  whom  the  judgment  so  rendered 
I  equitably  l)elongs,  either  wholly  or  in  part,  and  shall  be  required  to 
'  determine  whether,  for  the  purpose  of  participating  in  said  claim,  the 
Cherokee  Indians  who  remained  east  of  the  Mississippi  River  consti- 
tute a  part  of  the  Cherokee  Nation  or  of  the  Eastern  Cherokees,  so 
called,  as  the  case  may  be." 

The  claim  mentioned  in  said  H.  R.  Ex.  Doc.  No.  309,  .57th  Cong.,  lid 
sess..  is  therein  referred  to  and  described  as  follows: 

•' BrM>Ji'ed,  That  the  Attorney-General  of  the  United  States  is  hereby 
requested  to  advise  the  House  of  Representatives,  with  all  convenient 
speed,  in  the  case  of  the  Eastern  Cherokees  against  the  United  States. 
Avhether  or  not  the  award  rendered  under  the  Cherokee  agreement  of 
December  19,  1891.  ratified  l)y  act.  of  Congress  approved  March  3. 
1S93,  as  set  forth  in  H.  R.  Ex."  Doc.  No.  ISi.  53d  Cong,.  3d  sess..  and 


3 

the  Hndino-s  of  fact  of  the  Court  of  Chiiiiis  of  April  :i>.  VM)-2.  is  /v.y 
t/t/Ji/(h'ri/t'i:  to  review  the  opinion  of  the  Department  of  Justice  of 
Deeeuiber  !i,  LSH5,  and  advise  the  House  of  Representatives  whether 
the  reasons  set  forth  in  that  opinion  now  constitute  a  vaHd  defense  for 
the  payment  of  said  award." 

II. 

Prior  to  the  year  A.  D.  1S'»S.  the  Cherokee  Nation  of  Indians  was 
domiciled  in  (Teorgia.  Alabama.  Tennessee,  North  Carolina,  and  South 
Carolina,  where  they  owned  and  possessed  about  l-±.<>Oo,0(iu  of  acres 
of  land.  In  that  year  deputations  from  the  upper  and  lower  Cherokee 
towns,  duly  authorized  by  their  nation,  went  to  the  city  of  Washington, 
the  deputies  of  the  former  to  make  known  to  the  President  of  the 
United  States  the  anxious  desire  of  those  whom  they  represented  to 
engage  in  the  pursuits  of  agriculture  and  civilized  life  in  the  country 
which  they  then  occupied,  and  to  reciuest  the  establishment  of  a  division 
line  between  the  ui^pei'  and  lower  tOAvns,  so  that  they  might  the  more 
readily  begin  the  establishment  of  lixed  laws  and  a  regular  government; 
the  deputies  of  the  latter  to  make  known  to  the  Pi'esident  their  desire 
to  continue  the  hunter  life,  and  owing  to  the  scarcity  of  game  where 
they  then  lived,  their  wish  to  remove  across  the  Mississippi  River  on 
some  vacant  lands  of  the  United  States. 

After  maturely  considering  the  petitions  of  both  parties,  on  January 
9.  18UU,  the  President  answered  the  same,  saying  that — 

'"The  United  States,  my  children,  are  the  friends  of  both  parties, 
and.  as  far  as  can  be  reasonably  asked,  they  are  willing  to  satisfy  the 
wishes  of  both.  Those  who  remain  may  be  assured  of  our  patronage, 
our  aid.  and  good  neighborhood.  Those  who  wish  to  remove  are  per- 
mitted to  send  an  exploring  party  to  reconnoiter  the  country  on  the 
the  waters  of  the  Arkansas  and  White  rivers,  and  the  higher  up  the 
better,  as  they  will  V)e  the  longer  unapproached  by  our  settlements, 
which  will  begin  at  tlie  mouths  of  those  rivers.     *     ""     ■•■ 

'■  \Vhen  this  party  shall  have  found  a  tract  of  country  suiting  the 
emigrants,  and  not  claimed  by  other  Indians,  we  will  arrange  with  them 
ami  you  the  exchange  of  that  for  a  just  portion  of  the  country  they 
leave,  and  to  a  part  of  which,  propoitioned  to  their  numbers,  they 
have  a  right." 

Relying  on  the  promises  of  tlif  President  of  the  United  States,  as 
above  recited. the  Cherokees  who  wished  to  remove  explored  the  country 
on  the  west  side  of  the  ^Mississippi  and  made  choice  of  and  settled  tluMU- 
selves  down  upon  United  States  lands  on  the  Arkansas  and  White 
rivers,  to  which  no  other  trib(M)f  Indians  had  any  just  claim,  and  sub- 
se(|ut'ntly  sent  their  agents,  duly  (■mpow(n'ed  to  execute  a  treaty  rflin- 
<|ui-hing  to  the  Unitcnl  States  all  their  right,  title,  and  interest  to  all 
lands  which  th(\v  had  left.  oi'  w  liieli  they  were  al)Out  to  li'uvc.  and 
belonging  to  them  as  a  ))art  of  the  Cherokee  Nation,  in  all  of  which 
lands.  pro})ortioned  to  their  nunil)ers,  they  had  an  e(|u;il  right. 

To  the  treaty  of  cession,  which  wassub.se([uently  entere(l  into  on  tht^ 
Stli  day  of  fluly.  1S17.  the  chiefs,  headmen,  and  warriors  of  the 
Cherokee  Nation  east  of  the  Mississippi,  as  well  as  th(^  chiefs,  head- 
men, warriors,  and  deputies  of  the  Cherokees  on  the  Arkansas  Ri\  er 
were  parties. 


H\^  articlo-  1  of  said  treaty  "the  chiefs,  headmen,  and  warriors  of 
the  whole  Cherolvee  Nation"'  reded  to  the  Cnited  States  certain  hinds 
described  tht'rein,  "'in  part  of  the  proportion  of  Uxnd  in  the  Cherokee 
Nation  east  of  the  Mississippi  River,  to  which  those  now  on  the 
Arlvansas  and  those  atxnit  to  remove  there  are  justly  entitled/' 

Bv  article  2  said  chiefs,  headnien,  and  warriors  also  ceded  to  the 
United  States  other  lands  therein  described. 

'*Art.  -i.  The  contracting  parties  do  also  stipulate  that  the  annuity 
due  from  the  United  States  to  the  whole  Cherokee  Nation  for  the  year 
one  thousand  eight  hundred  and  eighteen  is  to  be  divided  between  the 
two  parts  of  the  nation  in  proportion  to  their  numbers,  agreeal)ly  to 
the  stipulations  contained  in  the  third  article  of  this  treaty;  and  to  be 
continued  to  be  divided  thereafter  in  proportion  to  their  numbers: 
and  the  lands  to  be  apportioned  and  surrendered  to  the  United  States 
agreeabh'  to  the  aforesaid  enumeration,  as  the  proportionate  part, 
agreeably  to  their  numbers,  to  which  those  who  have  I'emoved,  and 
who  declare  their  intention  to  remove,  have  a  just  right,  including 
these  with  the  lands  ceded  in  the  first  and  second  articles  of  this  treaty. 

'"Art.  5.  The  United  States  bind  themselves,  in  exchange  for  the  lands 
ceded  in  the  tirst  and  second  articles  hereof,  to  give  to  that  part  of  the 
Cherokee  Nation  on  the  Ai'kansas  as  much  land  on  said  river  and 
White  River  as  they  have,  or  ma^^  hereafter  receive  from  the  Chero- 
kee Nation  east  of  the  Mississippi,  acre  for  acre,  as  the  just  proportion 
due  that  part  of  the  nation  on  the  Arkansas,  agreeably  to  their  num- 
bers; which  is  to  commence  on  the  north  side  of  the  Arkansas  River, 
at  the  mouth  of  Point  Remove  or  BudwelTs  old  place;  thence,  by  a 
straight  line,  northwardlv,  to  strike  Chataunga  Mountain,  or  the  hill 
tirst  above  Shield's  ferry,  on  AVhite  River,  rumiing  up  and  between  said 
rivers  for  complement,  the  banks  of  which  rivers  to  1)e  the  lines;  and 
to  have  the  above  line,  from  the  point  of  l)eginning  to  the  point  on 
White  River,  run  and  marked,  which  shall  be  done  soon  after  the  rati- 
hcation  of  this  treaty;  and  all  citizens  of  the  United  States,  except 
Mrs.  P.  Lovely,  who  is  to  remain  where  she  lived  during  life,  removed 
from  within  the  bounds  as  above  named.  And  it  is  further  stipulated 
that  the  treaties  heretofore  between  the  Cherokee  Nation  and  the 
United  States  are  to  continue  in  full  force  with  both  parts  of  the 
nation,  and  both  parts  thereof  entitled  to  all  the  innnunities  and  priv- 
ilege which  the  old  nation  enjoyed  under  the  aforesaid  treaties,  the 
United  States  reserving  the  right  of  establishing  factories,  a  military 
post,  and  roads  within  the  boundaries  al)Ove  detined. 

''Art.  6.  The  United  States  do  also  bind  themselves  to  give  to  all 
the  poor  warriors  who  may  remove  to  the  western  side  of  the  Missis- 
sippi River  one  riHe  gun  and  ammunition,  one  blanket,  and  one  brass 
kettle;  or,  in  lieu  of  the  brass  kettle,  a  beaver  trap,  which  is  to  be 
considered  as  a  full  compensation  for  the  improvements  which  they 
may  leave,  which  articles  are  to  be  delivered  at  such  point  as  the  Presi- 
dent of  the  United  States  may  direct;  and  to  aid  in  the  removal  of  the 
emigrants,  they  further  agree  to  furnish  tlat-bottomed  boats  and  pi'o- 
visions  sufficient  for  that  purpose;  and  to  those  emigrants  whose 
improvements  add  real  value  to  their  lands,  the  United  States  agree 
to  p;iv  a  fidl  valuation  for  the  same,  which  is  to  be  ascertained  by  a 
connuissioner  appointed  by  the  President  of  the  United  States  for  that 
purpose,  and  paid  for  as  soon  after  the  ratification  of  this  treaty  as 


pructic:il>le.  The  boats  and  provisions  promised  to  tlie  cniigrants  are 
to  be  furnished  t>y  the  agent  on  the  Tennessee  River,  at  such  time  and 
phu-e  as  the  emigTiuits  may  notify  liim  of.  and  it  shall  Ije  his  duty  to 
furnish  the  same. 

''Akt.  11.  It  is  further  agreed  that  the  l)oundary  lines  of  the  lands 
ceded  to  the  United  States  by  the  lirst  and  second  articles  of  this 
treaty,  and  the  boundary  line  of  the  lands  ceded  by  the  United  States 
in  the  tifth  article  of  this  treaty,  is  to  be  run  and  marked  by  a  com- 
missioner or  connnissioners  appointed  by  the  President  of  the  Ignited 
States,  who  shall  be  accompanied  l)y  such  connnissioners  as  the  Chero- 
kees  may  appoint,'  due  notice  thereof  to  be  given  to  the  nation."* 
(Treaty  of  July  S.  1817,  between  the  United  States  and  Cherokee 
Nation;  7  Stat.  L..  156.  Indian  AtJ'airs.  Laws  and  Treaties  (liiU3), 
^ol.  -2.  p.  itb.) 

III. 

February  27,  ISl'.L  a  treaty  was  entered  into  between  the  United 
States  and  the  "chiefs  and  headmen  of  the  Cherokee  Nation  of  Indians. 
duly  authorized  and  empowered  l)y  said  nation.""  the  preamble  of  which 
is  as  follows: 

"'Whereas  a  greater  part  of  the  Cherokee  Nation  ha^e  expressed  an 
earnest  desire  to  remain  on  this  side  of  the  ^lississippi,  and  being- 
desirous,  in  order  to  commence  those  measures  which  they  deem  Jieces- 
sary  to  the  civilization  and  preservation  of  their  nation,  that  the  treaty 
between  the  United  States  and  them,  signed  the  eighth  of  July,  eigh- 
teen hundred  and  seventeen,  might,  without  further  delay,  or  the 
trouble  or  expense  of  taking  the  census,  as  stipulated  in  the  said  treaty, 
be  tinally  adjusted,  have  ottered  to  cede  to  the  United  States  a  tract  of 
country  at  least  as  extensive  as  that  which  they  prt)bal)ly  are  entitled 
to  under  its  provisions,  the  contracting  parties  have  agreed  to  and  con- 
cluded the  following  articles:*" 

By  Article  I  the  Cherokee  Nation  cedes  to  the  United  States  the 
lands  therein  described,  and  the  parties  mutually  declare  "that  the 
lands  hereby  ceded  by  the  Cherokee  Nation  are  in  fidl  satisfVu-tion  of 
all  claims  which  the  United  States  have  on  them,  on  account  of  the 
cession  to  a  i)art  of  their  nation  who  have  or  may  hereafter  emigrate 
to  the  Arkansas:  and  this  treaty  is  a  tinal  adjustment  of  that  of  the 
eighth  of  July,  eighteen  hundred  and  seventeen."" 

By  Article  \'I  of  said  treaty  it  was  estiiuated  that  the  Cherokees 
who  had  emigrated  and  those  who  had  enrolletl  for  emigration  together 
constituted  one-third  j)art  in  numbers  of  the  whole  nation.  (7  Stats.. 
U»5;  Indian  Affairs.     Laws  and  Treaties,  vol.  2,  pp.  124,  I2t».) 

IV. 

On  May  (1.  isi^is.  the  I'nited  States  entered  into  a  treaty  with  the 
"Cherokee  Nation  of  Indians  west  of  the  ]\lississip])i."  the  pi'eamblt^ 
of  which  is  as  follows: 

"^Vhereas  it  being  the  anxious  desire  of  the  (xovcM'nnuMit  of  the 
United  States  to  secure  to  the  Cherokee  Nation  of  Indians,  as  well 
those  now  livino- within  the  limits  of  the  Territory  of  Arkansas  as 


6 

those  of  their  friends  and  brothers  who  reside  in  States  east  of  the 
^Mississippi  and  who  may  wish  to  join  their  brothers  of  the  West,  a 
perni(in<nd  home^  and  which  shall,  under  the  most  solemn  guarantee  of 
the  United  States,  be  and  remain  theirs  forever — a  home  that  shall 
never,  in  all  future  time,  be  embarrassed  by  having-  extended  around 
it  the  lines,  or  placed  over  it  the  jurisdiction  of  a  Territor}"  or  State, 
nor  be  pressed  upon  by  the  extension,  in  any  way,  of  any  of  the  limits 
of  any  existing  Territory  or  State;  and 

''Whereas  the  present  location  of  the  Cherokees  in  Arkansas  being- 
unfavourable  to  their  present  repose,  and  tending,  as  the  past  demon- 
strates, to  their  future  degradation  and  misery;  and  the  Cherokees 
being  anxious  to  avoid  such  consequences,  and  yet  not  questioning 
their  right  to  their  lands  in  Arkansas,  as  secured"to  them  bv  treaty, 
and  resting  also  upon  the  pledges  given  them  b}'  the  President  of  the 
United  States  and  the  Secretary  of  War,  of  ^larch,  ISIS,  and  Sth 
October,  IS:?!,  in  regard  to  the  outlet  to  the  west,  and,  as  may  be 
seen  on  referring  to  the  records  of  the  War  Department,  still  being- 
anxious  to  secure  a. permanent  home  and  to  free  themselves  and  their 
posterity  from  an  embarrassing  connexion  with  the  Territor}"  of 
Arkansas,  and  guard  themselves  from  such  connexions  in  future;  and, 

'"  Whereas  it  being  important,  not  to  the  Cherokees  only,  but  also  to 
the  Choctaws,  and  in  regard  also  to  the  question  which  may  be  agi- 
tated in  the  future  respecting  the  location  of  the  latter,  as  well  as  the 
former,  within  the  limits  of  the  Territory  or  State  of  Arkansas,  as 
the  case  maj^  be,  and  their  removal  therefrom;  and  to  avoid  the  cost 
which  may  attend  negotiations  to  rid  the  Territory  or  State  of  Arkan- 
sas whenever  it  may  become  a  State,  of  either  or  both  of  those  tribes, 
the  parties  hereto  do  herebv  conclude  the  following  articles,  viz:" 

Article  1  defines  the  western  boundarv  line  of  Arkansas. 

■'Aet.  2.  The  United  States  agree  to  possess  the  Cherokees  and  to 
guarantee  it  to  them  forever,  and  that  guarantee  is  hereby  solemnly 
pledged,  of  seven  millions  of  acres  of  land."  all  west  of  the  western 
l30undary  of  Arkansas  and  ])ounded  as  therein  set  forth,  and  '"In  addi- 
tion to  the  seven  millions  of  acres  thus  provided  for.  and  bounded,  the 
United  States  further  guarantee  to  the  Cherokee  Nation  a  perpetual 
outlet  west,  and  a  free  and  unmolested  use  of  all  the  country  lying  west 
of  the  western  boundary"  of  the  above-described  limits,  and  as  farw^est 
as  the  sovereignty  of  the  United  vStates  and  their  right  of  soil  extend." 

■'Art.  3.  The  United  States  agree  to  have  the  lines  of  the  above  ces- 
sion run  without  delav."  and  •'to  remove  immediately  after  the  running- 
of  the  eastern  line  from  the  Arkansas  River  to  the  southwest  corner 
of  Missouri,  all  white  persons  from  the  west  to  the  east  of  said  line 
*     "     "     and  also  to  keep  all  such  from  the  west  of  said  line  in  future." 

By  article  5  it  was  agreed  "that  the  United  States,  in  consideration 
of  the  inconvenience  and  trouble  attending  the  removal,  and  on  account 
of  the  reduced  value  of  a  great  portion  of  the  land  herein  ceded  to 
the  Cherokees,  as  compared  with  that  of  those  in  Arkansas  which  were 
made  theirs  by  the  treaty  of  ISIT  and  the  convention  of  1S11>,  will 
pay  to  the  Cherokees.  immediately  after  their  removal,  which  shall  be 
within  fourteen  months  of  the  date  of  this  agreement,  the  sum  of 
fifty  thousand  dollars;  also  an  annuity  for  three  years  of  two  thousand 
dollars,  towards  defraying  the  cost  and  t4-ouble  which  may  attend  upon 
going  after  and  recovering  their  stock,  which  may  stray  into  the  Ter- 


ritorv  in  quest  of  the  pastures  from  which  they  may  be  drixen  :  also 
eio-ht  thousand  seven  hundred  and  sixt}'  doHars  for  spoihitions  com- 
mitted on  them  (the  Cherokees).  which  sum  will  he  in  full  of  all 
demands  of  the  kind  up  to  thi>  date."  *  *  ■'  and  "to  pay  two 
thousand  dollars  aniuially  to  thr  Cherokees  for  ten  yrai's.  to  Ut^ 
expended  under  the  tlirection  of  the  President  of  the  Tnitcd  States  in 
the  education  of  their  children  in  their  own  country.  ••  ""  ■'■  ulso 
one  thousand  towards  tlie  purchase  of  a  printine-  pres>  and 
type.*"     •■      ■•      " 

"Akt.  7.  I'he  chiefs  and  headmen  of  the  Cherokee  Nation  aforesaid, 
for  and  in  consideration  of  the  foregoing'  stipulations  and  provisions, 
do  herein'  agree,  in  the  name  and  l)ehalf  of  their  nation,  to  give  up. 
and  they  do  herel)y  surrender,  to  the  United  States,  and  ag-rce  to  leave 
the  same  within  fourteen  months,  as  hereinliefore  stipulated,  all  the 
lands  to  which  they  are  entitled  in  Arkansas  and  which  were  secured 
to  them  hy  the  treaty  of  Sth  January  (July).  islT,  and  the  convention 
of  the  27  "February. 'lsli». 

■'Art.  S.  The  Cherokee  Nation,  west  of  the  Mississppi.  ha\inu-  by 
this  ao'reement,  freed  themselves  from  the  harassing  and  ruinous 
etfects  consequent  upon  a  location  amidst  a  white  popidation.  and 
secured  to  themselves  and  to  their  posterity,  under  the  solemn  sanc- 
tion of  the  guarantee  of  the  United  States,  as  contained  in  this  agree- 
ment, a  large  extent  of  unembarrassed  country:  and  that  their  brothers 
yet  remaining  in  the  States  may  Ijc  induced  to  join  them  and  enj(.»y 
the  repose  and  blessings  of  such  a  State  in  the  future,  it  is  further 
agreed,  on  the  part  of  the  United  States,  that  to  each  head  of  a 
Cherokee  family  now  residing  within  the  chartered  limits  of  (Tcorgia. 
or  of  either  of  the  States  east  of  the  Mississippi,  who  may  desire  to 
remove  west,  shall  be  given,  on  enrolling  himself  for  emigration,  a 
goodritie,  a  1)lanket  and  kettle,  and  tive  pounds  of  tobacco:  (and  to 
each  meml)er  of  his  family  one  blanket),  also  a  just  compensation  for 
the  property  he  may  abandon,  to  be  assessed  by  persoirs  to  be 
appointed  by  the  President  of  the  United  States.  The  cost  of  the 
emigration  of  all  such  shall  also  be  borne  by  the  United  States,  and 
good  and  suitat)le  ways  ojxmed.  and  provisions  procured  for  their 
comfort,  acconmiodation,  and  support  by  the  way,  and  provisions  for 
twelve  months  after  their  arri\al  at  the  agency:  and  to  each  person, 
or  head  of  a  family,  if  he  take  along  with  him  four  persons,  shall  be 
paid  inunediately  on  his  arri\  iiig  at  the  agency  :ind  reporting  him>elf 
and  his  family,  or  followers,  a^  emigrants,  and  permanent  settlers,  in 
addition  to  the  ai>ove,  /ifor/'i/, //  ]i<  dud  fitti/  slmll  /i,n\  <  mni riif- 11  frinu 

ii'itJiin   fill'  c]i(irtrl'<:(I  rnii'ttx  of  tin     Slut,    i>f    (JcniUjiii.   t\\Q    sum    of    HftV 

dollars,  and  this  sum  in  pro[)ortion  to  any  greater  or  less  mnnber  that 
may  accompany  him  from  within  th(>  aforesaid  chartered  limits  of 
the  State  of  (xeorgia." 

Pui'suant  to  the  terms  of  this  treaty,  the  Cherokee  Nation,  west  of 
tlu»  Mississippi.  peaceal)ly  removed  from  their  lands  on  the  Arkansas 
and  White  rivers,  in  tln^  Tei'ritory  of  Arkansas,  to  the  lands  lu'wly 
ceded  to  them  in  the  Indian  Territory.  The  moneys  agreed  to  ln'  paid 
to  them  under  the  hftli  article  have  been  fidly  paitl  and  no  claim  is  now 
made  on  such  account  (7  Stats..  ;',!  1:  Ind.  Atl'aii's,  Laws  and  Treaties, 
vol.  -2.  pp.  2iH)-2(»S:  II.  R.  Kx.  Doc.  1n2,  :>;id  Cong.,  ;;d  sess.,  4:  K(hI 
IJook,  p.  t;.-)). 


V. 

By  treaty  of  February  14,  1833,  between  the  United  States  and  the 
"Chief.s  and  headmen  of  the  Cherokee  Nation  of  Indians  west  of  the 
Mississii^pi,''  a  change  in  the  boundary  lines  of  the  lands  ceded  under 
the  treaty  of  1S28  was  agreed  upon  to  adjust  a  conflict  with  the  grant 
previously  made  to  the  Creek  Indians,  and  l\v  article  1  of  said  treatj" 
of  1833  the  United  States,  in  addition  to  renewing  its  guarantee  and 
pledge  of  7,000,0(H)  acres  of  land  to  the  Cherokees,  further  agreed  that — 

^'In  addition  to  the  seven  million  of  acres  of  land  thus  provided  for 
and  bounded,  the  United  States  further  guarantee  to  the  Cherokee 
Nation  a  perpetual  outlet  west  and  a  free  and  unmolested  use  of  all 
the  country  Ijnng  west  of  the  western  boundary  of  said  seven  millions 
of  acres,  as  far  west  as  the  sovereignty  of  the  United  States  and  their 
right  of  soil  extend,  *  "^  "''  and  letters  patent  shall  be  issued  b}" 
the  United  States  as  soon  as  practicable  for  the  land  hereb}" 
guaranteed."" 

By  article  5  of  said  treaty  it  was  provided  that — 

'■'These  articles  of  agreement  and  convention  are  to  be  considered 
supplementary  to  the  treat}^  before  mentioned  between  the  United 
States  and  the  Cherokee  Nation  west  of  the  Mississippi  dated  sixth 
of  Ma}^  one  thousand  eight  hundred  and  twenty- eight,  and  not  to  vary 
the  rights  of  the  parties  to  said  treaty  any  further  than  said  treatj'  is 
inconsistent  with  the  provisions  of  this  treaty  now  concluded,  or  these 
articles  of  convention  or  agreement."  (7  Stats.,  41-4;  Ind.  Affairs 
Laws,  and  Treaties  (1903),  pp.  283,  285.) 

,VL 

•On  or  about  February  28,  1835,  a  delegation  of  the  Cherokee  Nation, 
east  of  the  Mississippi,  having  full  power  and  authority"  to  conclude  a 
treaty  with  the  United  States,  stipulated  and  agreed  with  the  Govern- 
ment of  the  United  States  to  submit  to  the  Senate  the  matter  of  the 
amount  which  should  be  allowed  to  their  nation  for  their  claims  and 
for  a  cession  of  their  lands  east  of  the  Mississippi  River,  agreeing 
for  themselves  to  abide  by  the  award  of  the  Senate  of  the  United 
States  and  to  recommend  the  same  to  their  people  for  their  final 
determination. 

The  Senate  on  March  6,  1835,  b}-  resolution,  advised  that  "a  sum 
not  exceeding  live  millions  of  dollars  be  paid  to  the  Cherokee  Indians 
for  all  their  lands  and  possessions  east  of  the  Mississippi  River." 

The  Cherokee  delegation,  after  the  award  of  the  Senate  had  been 
made,  were  called  upon  to  submit  propositions  as  to  its  disposition  to 
be  arranged  in  a  treaty,  but  they  declined  to  do  so,  insisting  that  the 
Senate  had  been  misled  to  the  injury  of  the  Cherokees.  and  that  the 
matter  of  said  award  "should  l)e  referred  to  their  nation  and  there,  in 
general  council,  to  deliberate  and  determine  on  the  subject  in  order  to 
insure  harmonv  and  good  feeling  among  themselves."  (7  Stats..  -478; 
Ind.  Aflairs  (19o3),  p.  324;  Sen.  Ex.  Doc.  215,  56th  Cono-.,  1st  sess., 
p.  77.) 

On  or  about  March  14,  1835,  a  certain  other  delegation  of  Chero- 
kees who  represented  that  portion  of  the  nation  east,  who  were  in 
favor  of  emigrating  to  the  Cherokee  country  west  of  the  Mississippi, 


9 

but  luid  no  authority  or  powei'  from  the  nation  gciun'tilly.  entered  into 
propositions  for  a  ti'eaty  with  .lohn  F.  Schernierhorn.  eoniinissioiior 
on  the  part  of  the  United  States,  which  they  ug'reed  to  suhuiit  to  the 
nation  for  final  action  and  detei'mination. 

Aniono-  other  things  inchided  in  the  draft  of  the  proi)osed  treaty,  it 
was  proposed  that  the  sum  of  ^5,000,000  should  be  paid  to  tlie  mem- 
bers of  tiie  Cherokee  Nation  east  for  their  lands  and  possessions  in 
accordance  with  the  above-<}uoted  resolution  or  '"award"  of  the  Senate, 
but  it  was  further  proposed  that  there  should  be  deducted  from  said 
live  millions  the  sum  of  i^i!r»5.no0  to  defray  the  expenses  of  removing" 
the  mpmbers  of  the  nation  to  the  west.  (Sen.  Ex.  Doc.  215,  ."ititti 
Cong.,  1st  sess..  pp.  S1-S2.) 

The  proposed  treaty  was  unanimously  rejected  by  the  Cherokee 
National  Council  for  the  reason  that  the  expense  of  removal  was 
therein'  proposed  to  be  deducted  from  the  fund  of  |5v(i0(»,0U0.  (Sen. 
Ex.  Doc.  215,  56th  Cong.,  1st  sess.,  p.  S3;  Sen.  Ex.  Doc.  12ii,  25th 
Cong,,  2d  sess..  -15 J».) 

During  the  consideration  of  this  proposed  treaty  by  the  Cherokee 
council  members  thereof  a  letter  from  President  .Jackson,  bearing 
date  ]\hirch  16,  1S35,  was  read  to  them  purporting  to  explain  the  pro- 
posed treatv.     That  letter  is  as  follows: 

'"  I  shall  in  the  course  of  a  short  time  appoint  cf)nunissioners  for 
the  purpose  of  meeting  the  whole  bod\'  of  your  people  in  council. 
Thev  will  explain  to  you  more  fully  my  views  and  the  nature  of  the 
stipulations  which  are  offered  to  you, 

"These  stipulations  pro\'ide — 

"1st.  Eor  an  addition  to  the  country  already  assigned  to  you  west 
of  the  Mississippi,  and  for  the  conveyance  of  the  whole  of  it.  I)y  ])at- 
ent,  in  fee  simple,  and  also  for  the  security  of  the  necessary  political 
rights,  and  for  preventing  white  persons  from  trespassing  upon  you. 

'''2d.  For  the  pa3"ment  of  the  whole  value  to  each  individual  of  his 
possessions  in  Georgia,  Alabama,  North  Carolina,  and  Tennessee. 

"3d.  For  the  removal,  at  the  expense  of  the  Cnited  States,  of  your 
wdiole  people:  for  their  subsistence  for  a  year  after  their  arrival  in 
their  new  country  and  for  a  gratuity  of  one  hundred  and  fifty  dollars 
to  each  yjerson. 

'*4th.   For  the  usual  supply  of  rifles,  blankets,  and  kettl(\s. 

"5th.  For  the  investment  of  the  sum  of  four  hundred  thousand  <h)l- 
lars,  in  order  to  secure  a  permanent  annuity. 

'"6th,  For  adequate  provisions  for  schools,  agricultural  instru- 
ments, dom(>stic  animals,  missionary  establishments,  the  su])port  of 
orphans,  etc. 

"  Vth.    For  the  payment  of  claims, 

'"Sth.  For  granting  pensions  to  such  of  your  people  as  lia\'e  lieen 
disabled  in  the  service  of  the  United  States. 

"These  are  the  general  provisions  contained  in  the  arrangement. 
l>ut  there  are  many  other  details  favorable  to  you  which  I  do  not  .>top 
here  to  enumerate,  as  they  w  ill  be  ])laced  befori^  you  in  the  arrange- 
ment itself.  Their  total  amount  is  four  million  live  hundred  thousand 
dollars,  which,  added  to  the  sum  of  five  hundred  thousand  dollars, 
estimated  as  the  \alue  of  the  additional  land  granted  you.  makes  five 
millions  of  dollars  — a  sum.  if  ei|ually  divided  among  all  your  ]ieople 
cast  of  the  ^Fississippi,  estimating  I  hem  at  ttMi  thousand,  wliicli  I  l>elieve 
is  their  full  number,  would  give  live  hundi'ed  dollai-s  to  every  man. 

;^l-t05— 05 2 


10 

woman,  and  child  in  yoiu  nation.  There  are  few  separate  comnumi- 
tie.s  whose  propert}-  if  divided  would  give  to  the  persons  composing 
them  such  an  amount."     (Senate  Doc.  215.  56th  Cong..  1st  sess.,  82.) 

VII. 

December  29. 1835.  a  treaty  was  drawn  up  between  the  United  States 
and  the  "(,'hiefs.  headmen,  and  people  of  the  Cherokee  tribe  of 
Indians."  which  treaty  is  commonly  called  the  "Treaty  of  New 
Echota." 

Neither  the  '"  Westei'n  Cherokees,"'  or  ''  Old  Settlers."  nor  the  great 
body  of  the  "Eastern  Cherokees"  were  parties  to  this  treaty  and  they 
at  all  times  up  to  the  making  of  the  treaty  of  1846  repudiated  it  on 
the  ground  that  its  execution  had  not  been  authorized  bv  them  or 
their  representatives  in  council. 

The  small  number  of  Cherokees  east  of  the  Mississippi  who  negoti- 
ated the  treaty  were  called  or  styled  the  '"Treaty  Party." 

It  was  provided,  among  other  things,  by  this  treaty,  as  follows: 

"Article  1.  The  Cherokee  Nation  hereby  cede,  relinquish,  and  con- 
vey to  the  United  States  all  the  lands  owned,  claimed,  or  possessed  by 
them  east  of  the  Mississippi  River,  and  hereby  release  all  their  claims 
upon  the  United  States  for  spoliations  of  every  kind  for  and  in  con- 
sideration of  the  sum  of  five  millions  of  dollars,  to  be  expended,  paid, 
and  invested  in  the  manner  stipulated  and  agreed  upon  in  the  follow- 
ing articles.  But  as  a  question  lias  arisen  between  the  commissioners 
and  the  Cherokees  whether  the  Senate  in  their  resolution  l:)v  whicli 
they  advi'^ed  "  that  a  sum  not  exceeding  live  millions  of  dollars  be  paid 
to  the  Cherokee  Indians  foi'  ail  their  lands  and  possessions  east  of  the 
^Mississippi  River'  have  included  and  made  any  allowance  or  considera- 
tion for  claims  foi"  spoliations,  it  is  therefore  agreed  on  the  part  of  the 
United  States  that  this  question  shall  be  again  submitted  to  the  Senate 
for  their  consideration  and  decision,  and  if  no  allowance  was  made  for 
spoliations,  that  then  an  additional  sum  of  three  hundred  thousand 
dollars  be  allowed  lor  the  same." 

Akt.  2.  That  as  it  was  apprehended  that  the  lands  west  of  the 
Mississippi  which  the  United  States  by  treaty  of  May  6.  1828.  and 
supplemental  treaty  of  Fe))ruar3'  1-1.  1833.  guaranteed  and  secured  to 
be  conveyed  by  patent  "to  the  Cherokee  Nation  of  Indians"  did  not 
contain  a  sufficient  quantity  of  land  for  the  accommodation  of  the 
whole  nation  on  their  removal  west,  the  United  States,  in  consideration 
of  S500,<M)0.  agreed  to  convey  to  said  Indians  l)y  patent  in  fee  simple  a 
further  tract  of  land  estimated  to  contain  8U(i.(»ou  acres. 

Akt.  3.  The  lands  ceded  b\  the  treaty  of  February  14.  1833.  includ- 
ing the  outlet,  and  those  ceded  by  this  treaty  should  l)e  included  in 
one  patent  executed  to  the  Cherokee  Nation  of  Indians  by  the  Presi- 
dent of  the  United  States. 

"Art,  S.  The  United  States  also  agree  and  stipulate  to  remove  the 
Cherokees  to  their  new  homes  and  to  subsist  them  one  year  after  their 
arrival  there,  and  that  a  suificient  number  of  steamboats  and  baggage 
wagons  shall  be  furnished  to  remove  them  comfortably  and  so  as  not 
to  endanger  their  health,  and  that  a  physician  well  supplied  with  medi- 
cines shall  accompany  each  detachment  of  emigrants  removed  bv  the 
Government.     Such  persons  and  families  as.  in  the  opinion  of  the 


11 

eniiuT!itiiii»'  aoent.  are  capahlt'  of  sul)sistini>'  and  rcmoviiiy  themselves 
shall  be  permitted  to  do  so:  and  they  shall  be  allowed  in  full  for  all 
claims  for  the  same  twenty  dollars  for  each  memljer  of  their  family 
and.  in  lieu  of  their  one  year's  i-ations,  they  shall  be  paid  the  sum  of 
thirty-three  dollars  and  thirty-three  cents,  if  the}'  prefer  it. 

"8uch  Cherokees  also  as  reside  at  present  out  of  the  nation  shall 
remove  with  them  in  two  vears  west  of  the  Mississippi  and  shall  be 
entitled  to  an  allowance  for  removal  and  subsistence  as  above  ]irovided. 

''Art.  15.  It  is  expressh^  understood  and  agreed  between  the  par- 
ties to  this  treaty  that  after  deducting-  the  amount  which  shall  be  actu- 
ally expended  for  the  payment  for  improvements,  ferries,  claims,  for 
spoliations,  removal  sul)sistence,  and  debts  and  claims  upon  the  Cher- 
okee Nation  and  for  the  additional  (juantity  of  lands  and  goods  for  the 
poorer  class  of  Cherokees  and  the  several  sums  to  be  invested  for  the 
general  national  fund:  provided  for  in  the  several  articles  of  this  treaty 
the  balance  wdiatever  the  same  may  be  shall  be  e(iually  divided  between 
all  the  people  l)elonging  to  the  Cherokee  Nation  east,  according  to  the 
census  just  completed:  and  such  Cherokees  as  have  removed  west  since 
June.  1.S83,  who  are  entitled  by  the  terms  of  theii'  enrolment  and 
removal  to  all  the  benetits  resulting  from  the  final  treaty  l)etween  the 
United  States  and  the  Cherokees  east,  they  shall  also  be  paid  for  their 
improvements  according  to  their  a})provai  value  before  their  removal 
where  fraud  has  not  already  been  shown  in  their  valuation." 

By  article  16  it  was  stipulated  that  the  Cherokees  should  remove  to 
their  new  homes  within  two  years  from  the  ratification  of  this  treaty. 

The  leaders  of  the  treaty  party  who  had  signed  the  treat v  of  1835 
contended  that  the  sum  of  S5.(M»(i.<)00  was  not  intended  to  include  the 
amount  which  might  be  required  to  remove  them. 

On  March  1,  ls36.  the  President  sul)mitted  to  the  Senate  the  follow- 
ing supplementary  articles,  which  were  adopted  as  part  of  the  treaty: 

""Article  1.  It  is  therefore  agreed  tliat  all  the  pi'eeni})tion  rights 
and  reservations  provided  for  in  articles  12  and  13  shall  l)e  and  are 
hereby  relin<,uished  and  declared  void. 

"Art.  2.    Whereas  the  Chei'okee  people  have  snp})osed  that  the  sum 

of  five  millionsof  dollars  fixed  by  the  Senate  in  their  resolution  of 

day  of  ]\larch.  1S35.  as  the  value  of  the  Cherokee  lands  and  ])ossessioiis 
east  of  the  ^Mississippi  River  was  not  intended  to  include  the  amount 
which  may  l)e  required  to  remove  them,  nor  the  \alue  of  certain 
claims  which  many  of  their  peoj)le  had  against  citizens  of  the  I'nitetl 
States,  wdiich  suggestion  has  l)een  confirmed  by  the  opinion  expressed 
to  the  War  Dejjartment  by  some  of  the  Senators  who  voted  ujjon  tlu^ 
question,  and  whereas  the  President  is  willing  that  this  sul)j(M-t  should 
be  referred  to  the  Senate'  for  theii-  consideration,  and  if  it  was  not 
intended  by  the  Senate  that  the  al)ove-m(Mitioned  sum  of  li\-e  millions 
of  dollars  should  include  the  objects  herein  specitied  that  in  that  case 
such  further  ])rovision  should  be  made  therefor  as  might  a[)pear  to 
the  Senate  to  be  just. 

''Art.  3.  It  is  therefore  agreed  that  the  sum  of  six  liuii(l:'<'(l  thousand 
dollars  shall  l)i'.  and  the  same  !-■  hereby,  allowed  to  the  Cherokee  peopli^ 
to  include  the  expense  of  theii-  i-emo\aI.  antl  all  claims  of  excry  nature 
and  description  against  the  ( iox  eminent  of  the  Cnited  States  not  herein 
otherwise  expresslv  i)ro\ide(l  f'U-.  aiul  tol)e  in  lieu  of  the  said  rest'i'\  atious 
and  preemptions,  and  of  the  sum  of  three  hundred  thousand  dollars  f(,)r 


12 

spoliations  described  in  the  1st  article  of  the  above-mentioned  treat3^ 
This  sum  of  six  hundred  thousand  dollars  shall  be  applied  and  dis- 
tributed agreeably  to  the  provisions  of  the  said  treaty,  and  any  sur- 
plus which  may  remain  after  removal  and  payment  of  the  claims  so 
ascertained  shall  be  turned  over  and  belong-  to  the  education  fund. 

''But  it  is  expressl}'  understood  that  the  subject  of  this  article  is 
merely  referred  hereby  to  the  consideration  of  the  Senate,  and  if  they 
shall  approve  the  same  then  this  supplement  shall  remain  part  of  the 
treaty." 

The  treaty  and  the  supplementarv  articles  were  ratified  and  adopted 
as  one  instrument  and  proclaimed  .May  23,  1836. 

VIII. 

The  Cherokee  Indians  who  removed  west  of  the  Mississippi  prior  to 
May  23,  1836,  were  called  ''  Western  Cherokees.''  After  the  removal, 
under  the  treaty  of  1835-36,  of  the  Cherokees  who  had  remained  in  the 
Cherokee  country  east  of  the  Mississippi  to  the  lands  west  of  the  Mis- 
sissippi, the  term  "Western  Cherokees"  was  no  longer  distinctive, 
and  the  Cherokees  who  had  theretofore  been  known  as  such  were  there- 
after popularly  known  as  ''Old  Settlers." 

The  Cherokees  who  were  domiciled  east  of  the  ^Mississippi  River  at 
the  time  of  the  making  of  the  treaty  of  1835-36,  according  to  the 
census  just  then  completed,  were  thereafter  known  as  "Eastern 
Cherokees,"  the  great  body  of  whom  subsequenth',  in  1838,  moved  to 
the  lands  west  of  the  Mississippi. 

IX. 

Sul^sequent  to  the  treaty  of  1828,  and  prior  to  the  signing  of  the 
treaty  of  Dece-nber  29,  1835,  almost  continuous  efforts  had  been  made 
to  induce  the  Cherokee  people  east  to  remove  to  the  Indian  Territory, 
but  without  success.  Under  the  provisions  of  said  treaty  of  1835 
practically  nothing-  was  accomplished  in  such  direction  until  the  sum- 
mer of  1838.  when  the  Cherokee  Nation  east  3'ielded  to  superior  force, 
and,  under  the  supervision  and  direction  of  their  own  leaders,  emi- 
grated west  of  the  Mississippi  to  the  lands  theretofore  ceded  to  the 
Cherokee  >sation  west.     (Reel  Book,  p.  60.) 

X. 

The  sum  of  $60(.),0(.>(i  provided  for  l)y  the  supplementarv  articles  of 
the  treaty  of  1835-36  was  estimated  to  be  more  than  sufficient  to  pay 
the  cost  of  removal  and  all  claims  of  every  nature  and  description 
against  the  Government  of  the  United  States  not  otherwise  provided 
for  in  said  treaty,  and  it  was  therefore  provided  that  whatever  surplus 
might  remain  after  removal  and  payment  of  claims  should  be  turned 
over  and  l)elong  to  the  education  fund.     (7  Stat,,  189.) 

On  July  2,  1836,  Congress  contirmed  the  action  of  the  Senate,  as 
evidenced  by  the  supplementary  articles  of  said  treaty,  and  appropri- 
ated, according  to  the  terms  of  the  third  supplementarv  article,  here- 
tofore ((uoted,  ti6(»(i.(i(to  for  the  removal  of  the  Cherokees  and  for 
spoliations. 

This  sum  proved  to  be  insufficient  for  the  purposes  for  which  it  was 
appropriated. 


13 

The  treaty  of  Deeeinber  i'..».  ls;;o.  was  refused  reco^-nition  hy  tlie 
^reat  l»o(ly  of  the  C'herokees.  They  protested  apiiiist  it  thi'oiig-li  their 
constituted  authorities  on  lunnerous  occasions  and  refused  to  j^i\e  it 
any  i'ecoy;'nition.  dechired  it  to  l)e  uiiauthoi-ized  hy  the  Cherokee  peo- 
ple and  a  f I'aud  on  the  United  States.  (Sen.  Ex.  Doc.  oHi!.  aOth  C'ono-.. 
1st  sess..  pp.  7-10.) 

TheCherokees  having-  nuuh'  no  jjreparations  to  reniox'e.  as  required 
]>y  the  terms  of  the  treaty  of  1835.  (len.  ^^'intiekl  Scott,  with  an  army 
of  men  in  ]May.  1S8S.  phiced  them  in  camps  of  concentration  under 
military  controL  preparsitory  to  their  removal  l)_v  force.  Thcrmpon. 
John  lioss  souulit  to  make  a  treaty  with  the  United  States.  l)ut  his 
overtures  were  rejected  and  the  i-emoval  of  the  Uherokees  by  force 
was  insisted  upon  by  the  United  States,  except  in  the  alternative  that 
the  Indians  would  agree  to  remove  themselves  peaceably. 

In  the  latter  part  of  May.  ISoS.  tlie  President  transmitted  to  Congress 
a  lettei  liearing  date  May  is.  ls;-],s.  from  the  Secretary  of  AVar  to 
.John  Ross,  principal  chief  of  the  Cherokee  Nation,  wherein  the  fol- 
lowing appears: 

■'If  it  be  desired  by  the  Cherokee  Xation  that  their  own  agent 
should  have  charge  of  their  emigration,  their  wishes  v.ill  be  com])lied 
with  and  instructions  be  given  to  the  commanding  general  in  the 
Cherokee  country  to  enter  into  arrangements  with  them  to  that  effect: 
with  regard  to  the  expense  of  this  operation  which  you  ask  may  l»e 
defrayed  bv  the  United  States,  in  the  opinion  of  the  undersigned  tlie 
request  ought  to  be  granted,  and  an  application  for  such  furthtM'  sum 
as  may  be  recpiired  for  this  purpose  shall  be  made  of  Congres>." 

This  last  conmiunication  was  transmitted  to  Congress,  and  on  May 
-Id.  183s.  the  House  of  Representatives,  by  resolution,  required  a  state- 
ment of  the  further  amount  necessary  to  pay  for  the  removal  and  >ub- 
sistence  of  the  Cherokees  (ibid..  78).  On  ^lay '25.  1838,  the  Secretary 
of  War  submitted  an  estimate  to  the  Speaker  of  the  House  of  Repre- 
sentatives "'of  the  amount  that  would  be  required"  to  remove  15.840 
Cherokees  and  to  sul)sist  is. ;',;;(;  Cherokees.  stating  that  the  further 
siuii  necessary  for  this  puri)ose  was  SI. 0-1:7. o(;7  (ibid..  7s),  and  on  June 
12,  1838.  Congress  api:)ropriated  this  amount  with  the  proviso  that  no 
part  of  it  should  be  deducted  from  the  S5.(MI(i.()(io  fund.  (5  Stat.  L.. 
p.  212:  Finding  VI.  Cong.,  lOoSC.) 

XI. 

The  appropriation  of  June  12.  ls;;s,  for  the  removal  of  the  Chero- 
kees. was  used  in  i)art  to  meet  tlie  expenses  of  remo^'ing•  certain  fugi- 
tive Creeks  then  living  auKuig  them.  The  Cherokt>(>  council,  by 
resolution  of  July  21.  ls:;s.  aullioii/ed  John  Ross  to  undertalce  the 
self-emigration  of  the  C'herokees.  miderwhat  tliey  t'laimed  to  be  the 
'■  special  understanding  with  the  Hon.  Sc^cretary  of  "War:**  that  such 
emigration  should  be  at  the  exix'iise  of  th(^  United  Staters,  and  by 
resolution  of  July  26,  183S.  autliori/ed  Ross  and  associate-;  to  arrange 
for"th(^  payment  of  such  >uins  of  money  l)y  the  United  States  as 
might  be  necessary  for  the  renioxal"  "'of  the  Cherokee  ])eop!e."" 

The  Cherokee  council,  about  the  same  time  and  bet()re  the  ])ayinent 
of  any  monev.  passed  a  resolution  on  August  1.  l>.".s.  declai'ing  that 
they  did  not  recognize  the  treaty  of  New  Hchota.  and   that  they  would 


14 

not  in  any  manner  give  their  sanction  or  approval   of  it.     (Record, 
pp.  L>13,  215,  217.) 

The  amount  appropi'iated  by  Cong-ress  June  12,  1838,  for  the 
'•object  specified  in  the  third  supplementary  article  of  the  treaty  with 
the  Cherokees  in  1835"  for  removal  expenses,  etc.,  to  wit,  11,047,067, 
remained  untouched  in  the  Treasury  on  January  1,  1839,  as  appears 
from  the  books  of  the  United  States  Treasurv.  (Receipts  and  Expen- 
ditures 1839,  p.  260.) 

XII. 

The  cost  of  the  removal  of  the  Eastern  Cherokees  from  Georgia  to 
the  Indian  Territory,  paid  and  expended  by  the  United  States,  was 
$1,495,485.92,  which  amount  w^as  obtained  as  follows: 

From  the  $600,000  appropriated  July  2,  1836. .?335, 105.  91 

From  the  §1,047,067  appropriated  June'  12,  1838 49,  095.  31 

From  the  85,000,000  appropriated  .Tnly  2,  1836 1,111,  284.  70 

Total 1,  495,  485.  92 

(Sen.  Ex.  Doc.  215,  56th  Cong..  1st  sess.,  p.  95;  Finding  V,  Cong, 
10386.) 

That  portion  of  the  cost  of  suljsisting  the  Eastern  Cherokees  after 
their  arrival  in  the  Indian  Territory,  which  was  at  first  deducted  by 
the  United  States  from  the  $5,0(>0,000  treaty  fund,  was  subsequently 
refunded  and  paid  to  the  Cherokees,  as  hereinafter  shown.  (Finding- 
IV,  Cong..  10386.) 

Of  said  amount  of  ^51,495,485.92  paid  by  the  United  States  for  the 
removal  of  the  Eastern  Cherokees  from  Georgia  to  the  Indian  Terri- 
tory, as  set  forth  above,  'D137,74<_»  was  paid  for  the  removal  of  2,200 
of  such  Cherokees  who  had  voluntarily  emigrated  (27  C.  Cls.  Reports, 
p.  3,  Finding  III)  at  a  cost  to  the  Government  of  $61.70  per  capita 
(Senate  Doc^  No.  215,  56th  Cong.,  1st  sess.,  p.  78),  and  $1,357,745.92 
were. paid  to  John  and  Lewis  Ross  for  the  removal  of  the  main  body 
of  the  remainder  of  such  Cherokees  in  1838  (Senate  Doc,  supra). 

The  amount  of  $1,111,284.70.  charged  against  the  $5,000,000  fund, 
as  before  set  forth,  still  remains  charged  against  that  fund  (Senate 
Doc.  215,  56th  Cong.,  1st  sess.,  p.  95).     (Finding  Y,  Cong.,  1(»386.) 

XIII. 

After  the  removal  of  the  Eastern  Cherokees  to  the  lands  west  of  the 
^lississippi  certain  leaders  of  both  the  Western  and  Eastern  Cherokees 
met  at  Illinois  Camp  Grounds  and  there,  on  July  12,  1838,  entered 
into  an  "Act  of  l^nion  between  the  Eastern  and  Western  Cherokees,"' 
which  is  as  follows: 

"  Whereas  our  fathers  have  existed  as  a  separate  and  distinct  nation 
in  the  possession  and  exercise  of  the  essential  and  appropriate  attri- 
butes of  sovereignty  from  a  period  extending  into  antiquity,  beyond 
the  records  and  memory  of  man;  and  .whereas  these  attributes,  with' 
the  rights  and  franchises  which  the}"  involve,  remain  in  full  force  and 
/       virtue,  as  do  also  the  national  and  social  relation  of  the  Cherokee  peo- 
/        pie  to  each  other  and  to  the  body  politic,  excepting  in  those  particulars 
/         which  have  grown  out  of  the  provisions  of  the  treaties  of  1817  and 
1819  between  the  United  States  and  the  Cherokee  Nation,  under  which 


15 

a  portion  of  our  people  ronio\e<l  to  this  country  and  beeunio  a  sopai'ate 
community  (but  the  force  of  circunistance.s  have  recently  c()nii)ell('(l  the 
body  of  the  Eastern  (Jiierokees  to  remove  to  this  c(jutitrv.  thus  brino- 
inu-  too-cther  again  the  two  In'anches  of  the  ancient  Cherokee  family), 
it  lias  l)ecome  essential  to  the  o-eneral  wcdfare  tluit  a  union  should  lie 
formed  and  a  system  of  o'overnment  matured  adapted  to  their  picscut 
condition,  and  providing  equally  for  the  protection  of  each  indi\idutil 
in  the  enjoyment  of  all  his  right-^: 

""Therefore  we.  tlie  people  composing  the  Eastern  and  \\'c<tern 
Cherokee  Nation,  in  national  convention  a.ssembled.  by  \irtue  of  our 
original  unalienal)le  rights,  do  herel)y  solemnly  and  nnitually  agree  to 
form  ourselves  into  one  body  j)oiitic  under  the  style  and  title  of  the 
Cherokee  Nation. 

'"In  view  of  the  union  now  formed,  and  for  the  purpose  of  making 
satisfactory  adjustment  of  all  unsettled  business  which  may  have  arisen 
before  the  consummation  of  this  union,  we  agree  that  such  business 
shall  I)e  settled  according  to  the  provisions  of  the  respi^ctive  laws 
under  which  it  originated,  and  the  courts  of  the  Cheroke(^  Nation  shall 
1)6  governed  in  their  decisions  accordingly.  Also,  tliat  the  delegation 
authorized  by  the  Eastern  Cherokees  to  make  arrangements  with 
^Major-General  Scott  for  their  removal  to  this  country  shall  contiiuie 
in  charge  of  that  business,  with  their  present  powers,  until  it  shall  l)e 
finally  closed:  and,  also,  that  all  rights  and  titles  to  put)lic  Cherokee 
lands  on  the  east  or  west  of  the  River  Mississippi,  with  all  other  public 
interests  which  may  have  vested  in  either  branch  of  the  Cherokee 
family,  whether  inherited  from  our  fathers  or  derived  from  any  other 
source,  shall  henceforward  ve.>t  entire  and  unimpaired  in  tiie  Cherokee 
Nation  as  constituted  by  this  union. 

"•(riven  under  our  hands  at  Illinois  camp  grounds  this  twelfth  day  of 
July,  1838. 

"'By  order  of  the  national  convention: 

•"(tkokok  Lc^wky. 

"  i',r.^!(lenf  of  the  FjiM'  n,  <'lnrul;r.s. 
his 

■■(teoki;!-:  x  Guess, 

mark 

••  Prrsidnf  ofthr   Wrstm,   Cln-ml.n^s:' 
(117  C.  S.,  30:3-805.) 

On  the  tith  of  September  following,  the  Cherokees  who  had  agreed 
upon  the  union  adopted  a  constitution  of  government  which,  after 
reciting  that  the  Eastern  and  Western  Cherokees  had  become  reunited 
in  one  body  politic  under  the  style  and  title  of  the  Ciieroki^e  Nation, 
proceeds  as  follows: 

'"Th(^  lands  of  the  Cherokee  Nation  sliall  riMuain  connnon  property; 
but  the  improvements  made  thereon,  and  in  the  possession  of  the  citi- 
zens of  the  nation,  are  t\w  e.\clusi\-e  and  indideasible  property  of  the 
citizens,  respectivtdy.  who  made  or  may  rightfully  l)e  in  po>se>sion  of 
them:  l'rnri(l,-<J.  That  the  citizens  o^"  the  nation,  possessing  exc-lusivc 
and  indefeasible  rights  to  their  improvements,  as  expressed  in  tlii> 
article,  shall  possess  no  right  oi'  ])ow(>r  to  disjiose  of  their  impro\"e- 
ments  in  any  manner  whate\'er  to  the  Cnited  States,  indix  idual  States, 
or  to  individual  citizens  tlaMvof:  and  that  whenexer  any  citizen  shall 
remoN'c  witli  his  etl'ects  out  of   the  limit  of   this   nation    and    bccoiue   a 


16 

citizen  of  any  other  government,  all  his  rights  and  privileges  as  a  citi- 
zen of  this  nation  shall  cease:  Provided,  nevertJieles)^^  That  the  national 
council  shall  have  power  to  readmit  b}"  law  to  all  the  rights  of  citizen- 
ship any  such  person  or  persons  who  may  at  any  time  desire  to  return 
to  the  nation,  on  memorializing  the  national  council  for  such  readmis- 
sion.''     (117  U.  S.,  305.) 

At  a  meeting  of  the  Cherokee  people  held  at  Tahlequah.  in  the 
Cherokee  Nation,  on  January  16,  IStto.  the  following  declaration  was 
made : 

"■  Whereas  a  meeting  of  the  Cherokee  people  was  agreed  on  and 
requested  by  the  United  States  agent  and  the  assistant  principal  chief 
and  others,  on  the  15th  instant,  at  this  place,  and  general  notilication 
given  throughout  the  country  to  all  parties  whatever,  recpiesting  their 
prompt  attendance  for  the  purpose  of  ascertaining  fairly  and  properly 
the  sense  and  choice  of  a  majority  of  the  nation  in  relation  to  the  sub- 
ject of  their  future  government;  and  whereas  we,  the  people  of  the 
Cherokee  Nation,  having  assembled  under  this  call,  and  having  heard, 
read  and  interpreted  the  act  of  union  adopted  by  the  Eastern  and 
Western  Cherokees,  dated  July,  1889,  and  the  constitution  framed  by 
a  convention  composed  of  members  from  both  parties  in  pursuance  of 
the  provisions  of  the  aforesaid  act,  and  being  satisfied  with  the  same, 
we  do  herel)y  approve,  ratify,  and  conliru)  the  said  act  of  union  and 
the  constitution,  and  acknowledge  and  make  known  that  the  govern- 
ment based  upon  this  act  and  this  constitution  is  the  legitimate  gov- 
ernment of  the  Cherokee  Nation  and  of  our  choice,  and  that  it  has 
both  our  confidence  and  support. 

•'Done  at  Tahlequah.  Cherokee  Nation,  the  16th  dav  of  January.  1840. 

•'J.  Yann. 

^^ Asx/stcod  Pr!nr/p(d  Chief. 
'^W\  Shorey  Coodey. 
''^President  Xidhrntd  Committte." 

(27  Ct.  Cls..  32) 

In  January,  1S4<X  General  Arbuckle.  the  military  commander  at 
Fort  Gibson,  in  charge  of  the  Cherokee  country  in  Indian  1  erritory. 
reported  to  the  Secretar}"  of  War  with  regard  to  the  act  of  union  and 
the  constitution  above  referred  to — 

"The  act  of  union  referred  to  in  one  of  the  accompanying  decrees 
is  certainly  not  entitled  to  credit,  as  there  were  a  very  small  number 
of  the  old  settlers  present  who  concurred  in  it.  and  they  acted  without 
authority." 

He  added: 

"This  change  will  no  doubt  be  severelv  felt  by  the  old  settlers  gen- 
erally, who  in  their  kindness  invited  the  late  emigrants  to  enjov  with 
them  the  lands  they  have  secured  for  themselves,  and  who  have  in  less 
than  one  year  after  their  arrival  formed  a  new  government  for  the 
nation  in  which  the  old  settlers  are  not  represented  by  a  single  indi- 
vidual of  tlieir  own  choice." 

And  on  the  29th  Januarv  he  wrote  to  the  Commissioner  of  Indian 
Attairs: 

"A  meeting  was  called  for  both  parties  to  attend,  consisting  of  old 
settlers  and  nev,-  emigrants,  Cherokees,  the  object  being  to  ascertain 


which  i);a'ry  had  the  majoritv.  The  old  settlers  did  not  attend.  a>  they 
were  doul)tless  well  aware  that  the\-  were  in  the  minority.  There 
were  ahout  Tot)  voters  present,  who  were  in  favor  of  the  new  yovern- 
nient;  they  voted  in  favor  of  the  constitution  and  laws  of  the  Koss 
party."     ('27  Court  of  Claims,  3o.) 

Notwithstanding  said  act  of  union  and  subsequent  proceedinus  there 
remained  much  bitter  feeling  between  the  Eastern  Cherokee,-  and  the 
■'Old  Settlers."  and  violent  measures  were  fretjuently  resorted  to  on 
l)oth  sides  to  carry  out  their  purposes.  These  circumstances,  among- 
others,  led  to  the  making  of  the  treaty  of  August  ti.  1846  (!•  Stats,  h, 
871).  wherein  it  is  recited  that — 

"Serious  dithculties  have  for  a  considerable  time  past  existed 
between  the  ditferent  portions  of  the  people  constituting  and  recog- 
nized as  the  Cherokee  Nation  of  Indians,  which  it  is  desiral)le  should 
be  speedily  settled,  so  that  peace  and  harmony  may  l;)e  restored  among 
them:  and  whereas  certain  claims  exist  on  the  part  of  the  Cherokee 
Nation  and  portions  of  the  Clierokee  people,  against  the  United  States:" 

therefore.  "  with  a  view  to  the  tinal  and  amicable  settlement  of  the 
difficulties  and  claims  before  mentioned  "  and  "to  make  the  Eastern 
and  Western  Cherokees  parties  to  the  treaty  of  New  Echota.  which 
they  had  never  conceded  themselves  to  be  "  (  Wf^sfern  C  'h<:^i'()hee><  v.  Uu  !t>'d 
Sfattx^  •!'  Ct.  Cls.,  36.  par.  3),  it  is  agreed,  among  other  things,  as 
follows: 

"AftTiCLE  1.  That  the  lands  now  occupied  1)V  the  Cherokee  Nation 
shall  l)e  secured  to  the  whole  Cherokee  people  for  their  common  use 
and  t)enetit:  and  a  patent  shall  be  issued  for  the  same,  including  the 
eight  hundred  thousand  acres  purchased,  together  with  the  outlet  west, 
promised  by  the  United  States,  in  conformity  with  the  provisions 
relating  thereto,  contained  in  the  third  articde  of  the  treaty  of  1835 
and  in  the  third  section  of  the  act  of  Congress  approved  ^Slay  twenty- 
eighth,  183U.  which  authorizes  the  President  of  the  United  States,  in 
making  exchanges  of  lands  with  the  Indian  trilies.  to  assure  the  tribe 
or  nation  with  which  the  exchange  is  made,  that  the  United  States  will 
forever  secure  and  guarantee  to  them,  and  their  heirs  or  successors, 
the  countrv  so  exchanged  with  them:  and,  if  thev  prefer  it.  that  the 
United  States  will  cause  a  patent  or  grant  to  be  made  and  executed  to 
them  for  the  same:  Pmrldf-d.  i/I>n/i/s.  That  sucli  lands  shall  revert  to 
the  United  States,  if  the  Indians  become  extinct  or  abandon  the 
same. 

"Art.  II.  All  difficulties  and  ditierences  heretofore  existing  between 
the  several  parties  of  the  Cherokee  Nation  are  hereby  settled  and 
adjusted,  and  shall,  as  far  as  possible,  be  forg-otten  and  forever  l)uried 
in  oblivion.  All  party  distinctions  shall  cease,  except  so  far  as  they 
may  be  necessary  to  carry  out  tliis  convention  or  treaty.  A  general 
amnesty  is  herel»y  declared.  .Vll  ottences  and  crimes  committed  V)v  a 
citizen  or  citizens  of  the  Cherokee  Nation  against  the  nation  or  against 
an  individual  or  individuals  are  herel)y  pardoned.  All  Cherokees  who 
tire  now  out  of  the  nation  are  invited  and  earnestly  re«[ue>ted  to  return 
to  their  homes,  where  they  may  live  in  peace,  assured  that  they  shall 
not  be  prosecuted  for  any  otfcnce  heretofore  committed  against  th(^ 
Cherokee  Nation  or  any  individual  thereof.  And  this  pardon  and 
amnesty  shall  extend  to  all  who  may  now  be  out  of  the  nation  and  who 
:-ji40o— o.'i— •-] 


18 

shall  return  thereto  on  or  before  the  1st  day  of  December  next.  The 
several  ])arties  a^ree  to  unite  in  enforcinj^"  the  laws  against  all  future 
offenders.  Laws  shall  be  passed  for  equal  protection  and  for  the 
security  of  life,  liljerty,  and  property;  and  full  authorit}"  shall  be 
given  by  law  to  all  or  any  portion  of  the  Cherokee  peo])le  peaceably 
to  assemble  and  petition  their  own  government  or  the  Government  of 
the  United  States  for  the  redress  of  grievances,  and  to  discuss  their 
rights.  All  armed  police,  light  horse,  and  other  military  organiza- 
tion shall  be  a)jolished,  and  the  laws  enforced  l)y  the  civil  authority 
alone. 

"  No  one  shall  be  punished  for  any  crime  or  misdemeanor,  except  on 
conviction  by  a  jury  of  his  country  and  the  sentence  of  a  court  duly 
authorized  by  law  to  take  cognizance  of  the  oftence.  And  it  is  further 
agi'eed  all  fugitives  from  justice,  except  those  included  in  the  general 
amnesty  herein  stipulated,  seeking  refuge  in  the  territory-  of  the  United 
States,  shall  be  delivered  up  by  the  authorities  of  the  United  States  to 
the  Cherokee  Nation  for  trial  and  ]3unishment. 

''Article  III.  Whereas  certain  claims  have  been  allowed  by  the  sev- 
eral boards  of  commissioners  heretofore  appointed  under  the  treaty  of 
1835  for  rents,  under  the  name  of  improvements  and  spoliations,  and 
for  property  of  which  the  Indians  were  dispossessed,  pro\ided  for  under 
the  IHth  article  of  the  treaty  of  1835;  and  whereas  the  said  claims  have 
been  paid  out  of  the  ^'S.OiiO,*!!)!)  fund;  and  whereas  said  claims  were 
not  justly  chargeal)le  to  that  fund,  but  were  to  be  paid  by  the  United 
States,  the  said  Ignited  States  agree  to  reimbui'se  the  said  fund  the 
amount  thus  charged  to  said  fund,  and  the  same  shall  form  a  part 
of  the  aggregate  amount  to  ))e  distributed  to  the  Cherokee  people,  as 
provided  in  the  Hth  article  of  this  treaty;  and  whereas  a  further 
amount  has  been  allowed  for  reservations  under  the  provisions  of  the 
13th  article  of  the  treaty  of  1835  by  said  commissioners,  and  has  been 
paid  out  of  the  said  fund,  and  which  said  sums  were  properly  charge- 
able to,  and  should  have  been  paid  by,  the  United  States,  the  said 
United  States  further  agree  to  reimburse  the  amounts  thus  paid  for 
reservations  to  said  fund;  and  whereas  the  expenses  of  making  the 
treaty  of  New  Echota  were  also  paid  out  of  said  fund,  when  they 
should  have  been  borne  by  the  United  States,  the  United  States  agree 
to  reimburse  the  same  and  also  to  reimburse  all  other  sums  paid  to 
any  agent  of  the  Government  and  improperly  charged  to  said  fund; 
and  the  same  shall  also  form  a  part  of  the  aggregate  amount  to  be  dis- 
tributed to  the  Cherokee  people,  as  provided  in  the  0th  article  of  this 
treaty. 

*'Art.  IV.  And  whereas  it  has  been  decided  by  the  board  of  com- 
missioners recently  appointed  hy  the  President  of  the  United  States  to 
examine  and  adjust  the  claiius  and  difficulties  existing  against  and 
between  the  Cherokee  people  and  the  United  States,  as  well  as  between 
the  Cherokees  themselves,  that  under  the  provisions  of  the  treaty  of 
1828,  as  well  as  in  conformity  with  the  general  policy  of  the  United 
States  in  relation  to  the  Indian  tribes,  and  the  Cherokee  Nation  in  par- 
ticular, that  that  portion  of  the  Cherokee  people  known  as  the  'Old 
Settlers,'  or  'Western  Cherokees' had  no  exclusive  title  to  the  ter- 
ritory ceded  in  that  treaty,  but  that  the  same  was  intended  for  the  use 
of,  and  to  be  the  home  for,  the  whole  nation,  including  as  well  that 
portion  then  east  as  that  portion,  then  west  of  the  Mississippi;  and 
wliereas  the  said  board  of  commissioners  further  decided  that,  inas- 


19 

much  as  the  territory  liefore  mentioned  became  the  common  property 
of  the  whole  Cherokee  Nation  by  the  operation  of  tiie  treaty  of  lS:>,s, 
the  Cherokees  then  west  of  the  Mississippi,  by  the  equita))le  operation 
of  the  same  treat\%  acquired  a  common  interest  in  the  hinds  occupied 
l>y  the  Cherokees  east  of  the  Mississippi  River,  as  well  as  in  those 
occupied  l)y  themselves  west  of  that  river,  which  interest  should  have 
been  provided  for  in  the  treaty  of  l.s35,  but  which  was  not,  except  in 
so  far  as  thev.  as  a  constituent  portion  of  the  nation,  retained,  in  pro- 
portion to  their  numbers,  a  common  interest  in  the  country  west  of 
the  Mississippi,  and  in  the  general  funds  of  the  nation;  and  therefore 
they  have  an  equitable  claim  upon  the  United  States  for  the  value  of 
that  interest,  wiiatever  it  may  be, 

•■  Now,  in  order  to  ascertain  the  value  of  that  interest,  it  is  agreed 
that  the  following  principle  shall  be  adcjpted,  viz:  All  the  investments 
and  expenditures  which  are  properly  chargeable  upon  the  sums  granted 
in  the  treat}'  of  1S35,  amounting  in  the  whole  to  five  millions  six  hun- 
dred thousand  dollars  (which  investments  and  expenditures  are  partic- 
ularly enumerated  in  the  15th  article  of  the  treaty  of  lS35),to  be  tirst 
deducted  from  said  aggregate  sum,  thus  ascertaining  the  I'esiduum  or 
amount  which  would,  under  such  marshalling  of  accounts,  l)e  left  for 
ptv  rapifii  distribution  among  the  Cherokees  emigrating  under  the 
treaty  of  1885,  excluding  all  extraAagant  and  improper  expenditures, 
and  then  allow  to  the  Old  Settlers  (or  ^^'estern  Cherokees)  a  sum 
equal  to  one-third  part  of  said  residuum,  to  be  distributed  prr  r<ij>ifa 
to  each  individual  of  said  party  of  'Old  Settlers,"  or  "  AVestern 
Cherokees.'  It  is  further  agreed  that,  so  far  as  the  Western  Cher- 
okees are  concerned,  in  estimating  the  expense  of  removal  and  >-ul»- 
sistence  of  an  Eastern  Cherokee,  to  be  charged  to  the  aggregate  fund 
of  tive  million  six  hundred  thousand  dollars  above  mentioned,  thesunr-^ 
for  removal  and  subsistence  stipulated  in  the  Sth  article  of  the  treaty 
af  ls;-35,  as  comnuitation  money  in  those  cases  in  which  the  parties 
entitled  to  it  removed  themselves,  shall  be  adopted.  And.  as  it  atfects 
the  settlement  with  the  Western  Cherokees,  there  shall  be  no  deduc- 
tion from  the  fund  before  mentioned  in  consideration  of  any  pay- 
ments which  may  hereafter  ])e  nrade  out  of  said  fund:  and  it  is  herrl»y 
further  understood  and  agreed  that  the  principle  above  detined  shall 
endjrace  all  those  Ciierokees  west  of  the  ^Mississippi  who  emigrated 
prior  to  the  treaty  of  1835. 

"•  In  the  consideration  of  the  foregoing  stipulation  on  the  part  of 
the  United  States,  the  "Western  Cherokees'  or  •Old  Settlers,"  hci-cby 
release  and  ciuitclaim  to  the  United  States  all  right,  title,  or  cl;iim 
they  may  have  to  a  conuuon  property  in  the  Cherokee  lands  cast  of 
the  ^lississippi  River,  and  to  exclusive  ownership  to  the  lands  ceded 
to  theln  In'  the  treaty  of  1833  west  of  the  Mississippi,  including  the 
outlet  west,  consenting  and  agreeing  that  the  said  lands,  together  with 
the  eight  hundred  thousand  acres  ceded  to  the  Cherokees  by  the  treaty 
of  1S35,  shall  be  and  remain  the  common  property  of  the  whole 
Cherokee  people,  themsehc^  iiicludetl." 

Articles  It.  lo.  and  11  are  as  follows: 

Art.  t>.  The  United  States  agree  to  luake  a  fair  and  just  settlement 
of  all  moneys  due  to*the  Cherokees  and  subject  to  the  per  ca])ita  divi- 
sion under'the  treaty  of  lii^Hh  Deeemlxu-.  1S35.  which  said  settlement 
shall  exhil)it  all  money  properly  expended  under  said  treaty  and  sludl 


20 

embrace  all  suiiis  paid  for  improvements,  ferries.  spoliatioDS,  removal, 
and  subsistence,  and  commutation  thei'efor,  debts  and  claims  upon  the 
Cherokee  Nation  of  Indians  for  the  additional  quantity  of  land  ceded 
to  said  nation;  and  the  several  sums  provided  in  the  several  articles 
of  the  treatv  to  be  invested  as  the  general  funds  of  the  nation;  and 
also  all  sums  which  may  be  hereafter  properly  allowed  and  paid  under 
the  provisions  of  the  treaty  of  1835,  the  aggregate  of  which  said  sev- 
eral sums  shall  l.)e  deducted  from  the  sum  of  six  millions  six  hundred 
and  forty-seven  thousand  and  sixtA'-seven  dollars,  and  the  balance  thus 
found  to  be  due  shall  be  paid  over  per  capita  in  equal  amounts  to  all 
those  individuals,  heads  of  families,  or  their  legal  representatives, 
entitled  to  receive  the  same  under  the  treaty  of  1835  and  the  supple- 
ment of  1836,  being  all  those  Cherokees  residing  East  at  the  date  of 
said  treaty  and  the  supplement  thereto. 

''Art.  10.  It  is  expressly  agreed  that  nothing  in  the  foregoing- 
treaty  contained  shall  be  so  construed  as  in  any  manner  to  take  away 
or  at)ridge  any  rights  or  claims  which  the  Cherokees  now  residing  in 
States  east  of  the  5lississippi  River  had.  or  may  have,  under  the  treaty 
of  1835  and  the  supplement  thereto. 

''Art.  11.  Whereas  the  Cherokee  delegations  contend  that  the 
amount  expended  for  the  one  year's  subsistence,  after  their  arrival  in 
the  West,  of  the  Eastern  Cherokees  is  not  properly  chargeable  to  the 
treat}'  fund,  it  is  hereby  agreed  that  that  question  shall  be  submitted 
to  the  Senate  of  the  United  States  for  its  decision,  which  shall  decide 
whether  the  subsistence  shall  be  borne  by  the  United  States  or  the 
Cherokee  funds,  and  if  by  the  'Cherokees,  then  to  say  whether  the  sub- 
sistence shall  be  charged  at  a  greater  rate  than  thirtv-three  33  100  dol- 
lars per  head;  and  also  the  question,  whether  the  Cherokee  Nation 
shall  be  allowed  interest  on  whatever  sum  may  l)e  found  to  be  due  the 
nation,  and  from  what  date  and  at  what  rate  per  annum." 

XV. 

The  Senate  of  the  United  States,  acting  as  umpire  under  Article  II 
of  the  treatv  of  1816,  on  September  5,  1850,  passed  the  following 
resolution: 

"  Bcsnlr^-il  l>ii  fht  Srnatr  of  the  United  Statc!<,  That  the  Cherokee 
Nation  of  Indians  are  entitled  to  the  sum  of  one  hundred  and  eighty- 
nine  thousand  four  hundred  and  twent3'-two  dollars  and  seventy  six 
cents  for  subsistence,  -being  the  diflerence  between  the  amount  allowed 
by  the  act  of  June  12,  1838.  and  the  amount  actually  paid  and  expended 
by  the  United  States,  and  which  excess  was  improperly  charged  to  the 
treaty  fund  in  the  report  of  the  accounting  officers  of  the  Treasury. 

"  Resol rrd.  That  it  is  the  sense  of  the  Senate  that  interest  at  the  rate 
of  live  per  cent  per  annum  should  be  allowed  upon  the  sums  found  due 
to  the  Eastern  and  Western  Cherokees,  respectively,  from  the  twelfth 
day  of  June,  eighteen  hundred  and  thirty-eight,  until  paid."  (Sen, 
Journal,  31st  Cong.,  1st  sess.,  p.  602.) 

This  amount  was  accordingly  appropriated  by  Congress  for  that  pur- 
pose by  the  act  of  September  30,  1850,  with  the  proviso  that  interest 
be  paid  on  the  same  at  the  rate  of  5  per  cent  per  annum,  according  to 
a  resolution  of  the  Senate  of  the  5th  of  September.  1850  (H  Stat.  L., 
p.  556).     (Finding  VII,  Cong.,  10386.) 


21 

XVI. 

Under  the  fourth  article  of  the  treaty  of  1846  the  aecountiny  ottieers 
of  the  United  States  made  and  prepared  for  settlement  the  ac-count 
therein  provided  for.  wherehy  it  appears  that  upon  crediting- tlie  treaty 
fund  therein  mentioned  as  the  article  prescribes,  there  would  remain 
a  balance  of  SI, 571. 34-6. o5.  one-third  of  whicli  distributatile  to  the 
Western  Cherokees  amountijio-  to  S.yJ3. -1-1:8.85.  Coug-ress  in  point  of 
fact  on  such  account  appropriated  ''55o2.T82.l8,  and  this  amount,  \\ith 
interest  thereon  at  5  per  cent  from  June  12.  1838.  was  thereupon  paid 
and  distributed  to  the  Western  Cherokees  y>ty  riipitii.  The  account  is 
as  follows: 

The  fund  provided  by  the  treaty  cif  ,ls;]5  \va^^  taken  to  he sr>,  HOO.  olXi.  uo 

From  which  was  deducted  under  the  treaty  of  1S46 
(4th  article)  the  sums  chargealile  under  the  h5th 
article  of  the  treaty  of  1835.  which,  accordinu:  to  the 
report  of  the  accounting  otficers,  stood  tlius: 

For  improvements si , 

For  ferries 

For  spoliations 

For  removal  and  subsistence  of  1S.02H  Indians,  at 

S53.3oA  per  head 

Debts  and  claims  upon  the  Cherokee  Nation,  viz: 

Nati.inal  debts  1 10th  article ) Sis,  mi.  06 

Claims  (if  United  States  citizens  i  Idtli 

article  ) HI,  073.  49 

Cherokee  connnittee  ( 12th  article"). . .     22,  212.  7H 

101,348.31 

Amount  allowed  United  States  for  additional  (juantitv 

of  land  ceded ".         500,  000.  00 

Amount  invested  as  a  general  fund  of  tiie  Nation 500.  880.  Oo 

4.  02S.  fi53.  45 


540, 572 

27 

159,572 

12 

264, S94 

09 

961,386. 

6(i 

"Which,  being  deducte<l  from  the  treaty  fund  of  S5.600,00ti,  leaves 
the  residuum  contemplated  b\  the  4th  article  of  the  treatv 

of  1846 ^ ■.      1,  571,  34(i.  55 

One-third  of  which  1  )alance  would  be 523.  448.  S5 

The  balance  found  by  this  accounting  to  i)e  due  the  Western  Chero- 
kees was  appropriated  for  and  paid  to  the  individual  distrilnitees  by 
and  luider  the  provisions  of  the  act  of  September  3ii.  1850  (!ri  Stats.. 
55<;). 

Under  the  ninth  article  of  the  treaty  of  1846  the  accounting  ottieers 
of  the  United  States  made  and  prepared  for  settlement  the  account 
provided  for  by  that  article,  whereby  it  appears  that  after  crediting 
the  treaty  fund  with  the  cost  of  subsistence  of  the  Indians  at  the  AVest. 
with  which  it  had  been  charged,  there  remained  a  l)alancc  due  of 
'S914.<i26.13.  Congress  accordingly,  in  addition  to  the  amount  of 
^181M22.7r).  which  had  been  appropriated  for  by  the  act  of  Septem- 
ber 30.  185()  (9  Stats..  55H).  puivsuant  to  the  resolution  of  thi^  Senate, 
by  the  act  of  February  2T,  l>i-51.  appropriated  the  furtlier  sum  of 
'S724.<!o3.3T.  and  there  was  thereupon  paid  and  distributed  to  the 
Eastern  Cherokees  jirr  fdj/ifa  the  al)ove  amoimts,  with  interest  thereon 
at  5  per  cent  from  Jitne  12.  Is3s. 


22 

This  account  in  detail  is  as  follows: 

Appropriation,  July  2,  1836 85,  000,  000.  00 

Appropriation,  Julv  2,  1836 600,  000.  00 

Appropriation,  June  12,  1838 1,  047,  067.  00 

Appropriation,  February  27, 1851 96,  999.  00 

Appropriation,  September  30,  1 850 189, 151.  24 

Amounts  advanced  to  individuals  and  afterwards  retained  out  of  aii- 

propriation  of  T'ebruary  27,  1851 271 .  52 


6,  933,  489.  IS 
Disbursements: 

For  improvements 81,  540,  572.  27  . 

For  ferries 159,  572.  12 

For  spoliations 264,  894.  09 

For  remoml  and  subsistence  and  com- 
mutation therefor,  including  82,765.84 
expended  for  goods  for  the  poorer 
Cherokees,  under  the  fifteenth  article 
of  treaty  of  1835,  as  follows: 

Removal,  subsistence,  and  commu- 
tation     82,  823, 192.  93 

Phvsicians,      matrons,     medicines, 

hospitals,  stores,  etc 32, 003.  91 

Superintendents,  clerks,  interpre- 
ters, disbursing,  issuing,  and  en- 
rolling   agents,    conductors,    and 

contingencies 96,  999.  42 

2,  952, 196.  26 

For  debts  and  claims  upon  the  Cherokee  Nation: 

National  debts  (tenth  article) 818,  062.  06 

Claims  of  United  States  citizens  (tenth 

article ) 61,  073.  49 

Cherokee  committee  (twelfth  article).     22,  212.  ^6 

101,  348.  31 

For  the  additional  quantity  of  land  ceded  to  the  nation.         500,  000.  00 
For  amount  invested  as  the  general  fund  of  the  nation.        500,  880.  00 

6,019,463.05     6,019,463.05 

914, 026. 13 

On  the  iTth  of  November,  1S51.  before  the  pa3^meut  of  any  money 
on  account  of  either  of  the  above-mentioned  balances  of  'S5j?8.41S.85 
and  S'.:tl4.(»26.13  or  the  signing  of  any  receipts  by  the  Indians  on 
account  thereof,  the  Cherokee  national  council  made  a  formal  state- 
ment of  the  mitional  claims  arising  as  was  contended  under  the  treaties 
of  Deceml^er  29,  1S35,  and  August  16,  1846,  and  protested  against  the 
above-mentioned  settlement  accounts  with  respect  to  the  failure  of  the 
accountants  to  credit  therein  the  treaty  fund  with  the  expenses  of 
removal,  saying,  among  other  things: 

"Ist.  Because  no  allowance  is  made  for  the  sums  taken  from  the 
treaty  fund  for  removal  to  the  West,  although  that  charge  depended 
on  precisely  the  same  words  in  the  treaty  of  Ls:35  as  did  the  one  year's 
subsistence,  and  the  Senate  unanimously  decided  on  the  question  sub- 
mitted to  them  as  arbitrators  that  the  item  of  subsistence  was  not  a 
proper  charge  upon  the  Cherokee  fund.  That  had  been  the  decision 
of  the  Senate  about  the  date  of  the  treaty  when  that  question  was 
specially  presented.  It  was  again  so  considered  by  Mr.  Poinsett,  Sec- 
retary of  War,  in  1838,  and  his  decision  was  sanctioned  by  the  action 
of  Congress  and  an  appropriation  was  made  for  that  purpose.  But 
the  estimates  being  too  small  by  half,  the  Indian  fund  was  then  for 
the  tirst  time  seized  upon. 


23 

"■2d.  If  it  be  conceded  that  the  Cherokee  fund  was  liaWle  for  these 
charges,  their  amount  was  limited  by  the  eighth  article  of  the  treaty  to 
a  certain  specified  amount,  and  the  Government  had  no  rioht  to  exceed 
that  amount  and  charye  it  to  the  Indian  fund. 

"  3d.  We  complain  that  the  alternative  of  receiving  for  sut)sistence 
833,33,  as  provided  for  in  the  treaty,  was  refused  to  be  complied  with 
and  the  people  forced  to  receive  rations  in  kind  at  double  the  cost. 

"-tth.  We  complain  that  the  rations  issued  l)v  the  military  com- 
mandant at  Fort  Gil)son  to  'indigent  Cherokees "  was  impr()})erly 
charged  to  treaty  fund  without  any  legal  authority. 

•"otli.  We  claim  that  the  United  states  is  bound  to  reimburse  the 
amount  paid  to  more  than  2U0  or  300  Cherokees  who  had  emigrated 
to  the  West  prior  to  1835,  but  who  were  refused  a  participation  in 
the  "old  settler*  fund  and  thrown  on  the  emigrant  party  who  removed 
after  that  date. 

•N3th.  We  claim  that  the  Cherokees  who  remained  in  the  States  of 
Georgia.  North  Carolina,  and  Tennessee  were  not  entitled  to  any  share 
in  the  per  capita  fund,  as  they  complied  with  neither  of  two  conditions 
of  their  remaining  East,  both  of  which  were  indispensal>le.  and.  also. 
V)ecause  the  census  of  those  Cherokees  is.  as  we  believe,  enormously 
exaggerated. 

"  Tth.  ^Ve  complain  that  the  sum  of  ^103,000  has  been  charged  upon 
the  treatv  fund  for  expenses  of  Cherokees  in  Georgia  three  months 
after  they  were  all  assembled  and  had  reported  themselves  to  General 
Scott  as  ready  to  connnence  the  march. 

"8th.  ^^e  claim  interest  on  the  balance  found  due  us  from  the  l.')tli 
of  April.  1851,  till  i)aid.  Congress  having  no  power  to  abrogate  the 
stipulations  of  a  treaty. 

•■l»th.  We  also  complain  that  §20.000  of  the  fund  of  the  emigrant 
Cherokees  were  taken  to  pay  the  counsel  and  agents  of  the  'Old 
Settlers'  without  any  authority." 

On  the  22d  day  of  September.  1851.  the  western  Cherokees  had 
also  formulated  a  separate  protest  au'ainst  the  proposed  settlement  with 
them  ("Old  Settlers"  case.  27  C.  Cls..  9). 

Both  of  the  foregoing  protests  were  transmitted  to  and  received  by 
the  Conmiissioner  of  Indian  Affairs  during  the  month  of  April.  1S52. 

Thereafter  said  balance  of  §1»14.02<;;.13,  with  interest  at  5  per  cent 
from  June  12,  1838,  was  duh"  paid  and  distributed  to  and  among  the 
Eastern  Cherokees  ^^(^r  capHa  and  the  individual  Eastern  Cherokees 
executed  and  delivered  to  the  United  States  a  full  and  tinal  discharge 
of  all  claims  and  demands  whatsoever  on  the  United  States,  as  recpiired 
by  the  statute  making  the  appropriations. 

This  discharge  was  in  the  form  following: 

"  AA'e.  the  undersigned  emigrant  or  Eastern  Cherokees.  do  hereby 
acknowledge  to  have  received  from  John  Drennan.  Su]>erintendent 
Indian  Atiairs.  the  sums  opposite  our  names.  respccti\ely.  l)eing  in 
full  of  all  demands  under  the  treaty  of  sixth  of  Au*iu-r.  eighteen 
hundred  and  forty-six,  according  to  the  principles  established  in  the 
ninth  article  thereof,  and  appropriated  by  (,'ongress  ])ei-  act  .'loth  of 
Se]3tember.  iSnO.  and  per  act  27th  of  February.  Is51.  which  i-eads  as 
follows: 

"And  the  said  Cherokee  Nation  shall,  on  the  payment  of  said  sum 
of  monev,  execute  and  deliver  to  the  United  States  a  full  and  tinal 


24 

di.scharg-e  for  all  claims  and  demands  whatsoever  on  the  United  States, 
except  for  such  annuities  in  money  or  specitic  articles  of  property  as 
the  United  States  may  be  bound  by  treaty  to  pay  to  said  Cherokee 
Nation,  and  except  also  such  money  and  lands,  if  any,  as  the  United 
States  may  hold  in  trust  for  said  Cherokees.-'  (Finding  VIII,  Cono-. 
1(»3S6.) 

And  thereafter  the  said  balance  of  $532, 782. IS,  with  interest  at  5 
per  cent  from  June  12,  1838,  was  appropriated  by  Congress,  was  duh^ 
paid  and  distributed  to  and  among  the  Western  Cherokees  ^^er  capita., 
and  the  individual  Western  Cherokees  executed  and  delivered  to  the 
United  States  a  discharge  in  tiie  following  form: 

■'We,  the  undersigned  "old  settlers'  or  Western  Cherokees.  do 
hereby  acknowledge  to  have  received  from  John  Drennan,  Supt.  of 
Indian  Atfairs,  the  sums  set  opposite  our  names  respectively,  being  in 
full  of  all  demands  under  the  provisions  of  the  treaty  of  the  sixth  of 
August,  eighteen  hundred  ancl  fortv-six,  according  to  the  principles 
established  in  the  fourth  article  thereof,  as  per  act  entitled:  'An  act 
making  appropriations  for  the  current  and  contingent  expenses  of  the 
Indian  Department,  and  for  fultilling  treaty  stipulations  with  various 
Indian  tribes  for  the  year  ending  June  30th.  one  thousand  eight  hun- 
dred and  tifty-one,'  approved  September  30th,  1850."'' 

The  provisions  of  the  appropriation  acts  referred  to  in  the  tinding 
are  as  follows,  viz: 

[Act  of  September  ;-30,  1S50  (9  Stats.  L.,  52o,  556).] 

■'  To  the  ■  old  settlers'  or  '  Western  Cherokees,' in  full  of  all  demands, 
under  the  provisions  of  the  treaty  of  sixth  August,  eighteen  hundred 
and  forty-six,  according  to  the  principles  established  in  the  fourth 
article  thereof,  live  hundred  and  thirty-two  thousand  eight  hundred 
and  ninet3'-six  dollars  and  ninety  cents;  and  that  interest  be  allowed 
and  paid  upon  the  above  sums  due  respectively  to  the  Cherokees  and 
*■  old  settlers."  in  pursuance  of  the  al)ove-mentioned  award  of  the  Senate, 
under  the  reference  contained  in  the  said  eleventh  article  of  the  treaty 
of  sixth  August,  eighteen  hundred  and  forty-six:  Provided,  That  in  no 
case  shall  any  money  hereby  appropriated  be  paid  to  any  agent  of  said 
Indians,  or  to  any  other  person  or  persons  than  the  Indian  or  Indians 
to  whom  it  is  due:  Provided  also.  That  the  Indians  who  shall  receive 
the  said  money  shall  lirst  respectively  sign  a  receipt  or  release, 
acknowledging  the  same  to  V)e  in  full  of  all  demands  under  the  fourth 
article  of  said  treaty."' 

[Act  of  February  27,  1851  (9  Stat.  L.,  .'70,  572).] 

'"For  payment  to  the  Cherokee  Nation  the  sum  of  seven  hundred 
and  twenty-four  thousand  six  hundred  and  three  dollars  and  thirty- 
seven  cents,  and  interest  on  the  al)Ove  sum  at  the  rate  of  five  per 
centum  per  annum,  from  twelfth  day  of  June,  eighteen  hundred  and 
thirty-eight,  until  paid,  shall  he  paid  to  them  out  of  any  money  in 
the  Treasury  not  otherwise  appro})riated:  but  no  interest  shall  be 
paid  after  the  first  of  April,  eighteen  hundred  and  fifty-one.  if  any 
portion  of  the  mone\'  is  then  left  undrawn  b}'  the  said  Cherokees: 


25 

Proi'ldtd,  lioii'ri',  i\  Tluit  the  sum  now  appropriated  shall  he  in  full 
satisfaction  and  a  tinal  settlement  of  all  claims  and  demands  whatso- 
ever of  the  Cherokee  Nation  aoainst  the  United  States,  under  an}' 
treat}'  heretofore  made  with  tlie  Cherokees.  And  the  said  Cherokee 
Nation  shall,  on  the  payment  of  said  sum  of  money,  execute  and  deliver 
to  the  United  States  a  full  and  tinal  discharge  for  all  claims  and 
demands  whatsoever  on  the  United  States,  except  for  such  annuities 
in  money  or  specific  articles  of  pi-operty  as  the  United  States  may 
l)e  1)ound  by  any  treaty  to  pay  to  said  Cherokee  Nation,  and  exceY)t. 
also,  such  moneys  and  lands,  if  any.  as  the  United  States  mav  hold  in 
trust  for  said  Cherokees:  And  prnrnh-ij  fni'f]iri\  Tiiat  the  monc}' 
appropriated  in  this  item  shall  be  jiaid  in  strict  conformity  with  the 
treaty  with  said  Indians  of  sixth  August,  eighteen  hundred  and 
forty-six." 

No  portion  of  either  of  said  balances  was  paid  to  the  Cherokee 
Nation  or  its  citizens,  otherwise  than  as  above  set  forth,  and  no  receipt 
or  discharge  other  than  as  above  descri])ed  passed  to  the  Ignited  States 
on  account  of  such  payments. 

XVII. 

By  act  of  Congress  of  Fel)ruary  2i;t,  1889  (^25  Stats..  (Uti).  it  was 
provided — 

"That  the  claim  of  that  part  of  the  Cherokee  Indians  known  as 
the  Old  Settlers  or  AVestern  Cherokees  against  the  United  States, 
which  claim  was  set  forth  in  the  report  of  the  Secretary  of  the  Inte- 
rior to  Congress  of  Februar}'  third,  eighteen  hundred  and  eighty-three 
(said  report  being  made  under  act  of  Congress  of  August  seventh, 
eighteen  hundred  and  eighty-two),  and  contained  in  Executive  Docu- 
ment Numl)er  Sixty  of  the  second  session  of  the  Forty-seventh  Con- 
gress, be,  and  the  same  hereby  is.  referred  to  the  Court  of  Claims  for 
adjudication:  and  jurisdiction  is  herein'  conferred  on  said  court  to 
try  said  cause  and  to  determine  what  sum  or  sums  of  money,  if  any. 
are  justly  due  from  the  Ignited  States  to  said  Indians,  arising  from 
or  growing  out  of  treaty  stipulations  and  acts  of  Congress  relating 
thereto,  after  deducting  all  payments  heretofore  actually  made  to  said 
Indians  by  the  United  States,  either  in  money  or  property:  and  after 
deducting  all  oti'sets.  counterclaims,  and  deductions  of  any  and  every 
kind  and  character  which  should  be  allowed  to  the  United  States  under 
any  valid  provision  or  provisions  in  said  treaties  and  laws  contained, 
or  to  which  the  United  States  may  be  otherwise  entitled." 

Under  this  act  suit  was  instituted  in  tlie  Court  of  Claims  on  Ix'lialf 
of  the  ''Old  Settlers,"  and  resulted  in  a  judgment  against  the  United 
States  for  S22-l:,!>7'2.(:)8.  "' l)eing  a  l)alance  of  the  p<-r  cnjiiiii  fund  pro- 
vided b}'  the  fourth  article  of  the  treaty  between  the  United  Stall's  and 
the  Western  Cherokees,  dated  August  H,  184<i,  together  with  interest 
thereon  from  the  12th  day  of  dune.  l8o8,  up  to  and  until  the  enti'y  of 
this  decree,  being  the  sum  of  >^<')Ii;k115.58,  and  likewise  the  sum  of 
§1.17'.:».2»)  for  :-).ol:On,V  acres  of  land  in  Arkansas  ceded  to  the  United 
States  bv  article  -1  of  the  treaty  of  May  <!.  182S.  lunonnting  in  the 
aggi-egate  to  the  sum  of  «s:^2.:^|t^:.2."  (27  Ct.  of  Cls..  1.  2(i.  .^t',.) 
"On  appeal  to  the  Supreme  Court  of  the  United  States  this  judgment, 


26 

on  April  3,  1893,  was  modified  as  per  the  account  stated  by  that  court 
as  follows: 

The  treaty  fund So,  600,  000.  00 

Less: 

For  800,000  acres  of  land 8500,  000.  00 

For  general  fund 500,  000.  00 

For  improvements 1,  540,  572.  27 

For  ferries 159.  572.  12 

For  spoliations 264,  894.  09 

For  deVits,  etr .     60,  000.  0(  i 

For  removal  of  16,957  Cherokees,  at  §20  each 339,  140.  DO 

3,  3H4, 178.  48 

Giving  as  the  residuum  to  be  divided 2,  235,  821.  52 

One-third  due  the  Western  Cherokees 745,  273.  84 

Less  payment  September  22,  1851 532,  896.  90 

Leaving  a  Vjalance  of 212,  376.  94 

To  which  amount  the  court  added  the  further  sum  of  $-t.l79.26  for 
the  Arkansas  agency,  and  as  so  modified  was  affirmed  with  interest  on 
said  balance  of  S21l!,376.1;»4  at  the  rate  of  5  per  cent  from  June  12, 
ISoS.  up  to  and  until  the  modification  of  the  decree. 

August  23,  1894,  Congress  appropriated  the  sum  of  r5800,386.31  in 
settlement  of  this  judgment,  and  of  such  amount  the  sum  of  §745.273.84 
was  distributed  to  the  Western  Cherokee  as  identified  by  the  Dren- 
nen  roll  of  1852,  if  living,  and  to  the  descendants  of  those  who  had 
died.  .Vccording  to  said  roll  the  '"Western  Cherokee''  then  num- 
bered 3,146  persons,  who  accordingly  received  the  sum  of  §236.89^>e>?' 
capita,  excluding  interest. 

XVIll. 

By  section  14  of  the  act  of  Congress  entitled  "An  act  making  appro- 
priations for  the  current  and  contingent  expenses  of  the  Indian  Depart- 
ment, and  for  fulfilling  treaty  stipulations  with  various  Indian  tribes 
for  the  year  ending  June  30,  1889.  and  for  other  purposes,"  appro\"ed 
March  2,  1889  (25^  Stats.  L.,  1005),  the  President  was  authorized  to 
appoint  three  commissioners  to  negotiate  with  the  Indian  tribes  own- 
ing or  claiming  lands  lying  west  of  the  ninety-sixth  degree  of  longi- 
tude in  the  Indian  Territory  for  the  cession  to  the  United  States  of  all 
their  title,  claim,  or  interest  of  every  kind  or  character  in  and  to  said 
lands,  and  he  did  appoint  David  H.  Jerome.  Alfred  M,  Wilson,  and 
AVarren  G.  Sayre  such  commissioners. 

B}'  virtue  of  the  authority  contained  in  an  act  of  the  Cherokee 
national  council,  approved  November  16,  1891.  Elias  C.  Boudinot, 
Joseph  A.  Scales,  Roach  Young,  William  Triplett,  Thomas  Smith, 
Joseph  Smallwood,'  and  George  Downing  were  duly  appointed  com- 
missioners—  » 

"To  meet  and  enter  into  negotiations  with  the  above-named  com- 
mission, appointed  by  the  President  of  the  United  States,  for  the  ces- 
sion of  the  lands  of  the  Cherokee  Nation  west  of  the  96th  degree  of 
west  longitude,  and  for  the  final  adjustment  of  all  questions  of  interest 
between  the  United  States  and  the  Cherokee  Nation  which  are  now 
unsettled.'"' 


27 

By  said  act  of  Congress  it  was  made  the  duty  of  said  commissioners 
appointed  l)y  the  President,  to  rej)ort  all  agreements  resulting  from 
such  negotiations  to  the  President,  to  be  by  him  reported  to  the  Con- 
gress at  its  next  session,  and  by  the  act  of  the  Cherokee  council  it  was 
made  the  duty  of  the  commissioners  on  the  part  of  the  Cherokee 
Nation  to  report  all  their  proceedings  in  full  to  the  national  council  for 
its  appro v^al  and  ratification.     (Ex.  Doe.  .50,  52d  Cong.,  1st  sess.,  IT.) 

At  the  outset  of  the  negotiations  between  said  commissioners  for 
the  purchase  and  sale  of  said  lands,  which  were  known  as  the  "  Cherokee 
Outlet."  the  conmiissioners  on  the  part  of  the  Cherokee  Nation  renewed 
their  claims  and  contentions  with  respect  to  the  ))alanees  alleged  to 
be  due  to  them  under  yarious  treaties,  and  particularly  their  contention 
that  the  so-called  treaty  fund  had  Ijcen  improperly  charged  with  the 
expense  of  the  removal  of  the  Eastern  Cherokees  to  the  Indian  Terri- 
tory, and  demanded  as  '"a  condition  precedent  to  any  agreement  for 
the  sale  of  the  land"  that  some  adjustment  of  such  contentions  should 
be  made. 

On  the  lUth  of  December,  1S91,  after  prolonged  negotiations,  the 
conimissioners  aboye  named  entered  into  articles  of  agreement.  l)y 
Article  I  of  which  it  was  agreed  that — 

•'  The  Cherokee  Nation,  by  act  duly  passed,  shall  cede  and  relin- 
quish all  its  title,  clainj.  and  interest  of  every  kind  and  character  in 
and  to  that  part  of  the  Indian  Territory  bounded  on  the  west  by  the  one 
hundredth  (100" )  degree  of  west  longitude,  on  the  north  by  the  State 
of  Kansas,  on  the  east  by  the  ninety-sixth  (!Mi-)  degree  west  longi- 
tude, and  on  the  south  by  the  Creek  Nation,  the  Territory  of  Okla- 
homa, and  the  Cheyenne  and  Arapahoe  Reservation  created  or  defined 
by  Executive  order,  dated  August  H».  1S60.  the  tract  of  land  embraced 
within  the  above  boundaries  containing  eight  million  one  hundred  and 
forty-four  thousand  six  hundred  and  eight^^-two  and  ninety-one  one- 
hundredths  (8,11:1:.082.91)  acres,  more  or  less." 

By  article  2  that — 

"For  and  in  consideration  of  the  above  cession  and  relinquishment 
the  United  States  agrees:" 

First.  That  it  will  remo\e  from  the  limits  of  the  Cherokee  Nation 
as  trespassers  certain  descril)ed  ]iersons. 

Second.  That  a  certain  article  of  the  antecedent  treaty  of  duly,  ISijii, 
should  l)e  a])rogated  and  held  for  naught. 

Third.  That  the  judicial  tri])uiuds  of  the  Cherokee  Nation  should 
have  exclusive  jurisdiction  in  eertain  cases. 

Fourth.  That— 

''The  United  States  shall,  without  delay,  render  to  the  Cherokee 
Nation,  through  any  agent  appointed  l)y  authority  of  the  national 
council,  a  complete  account  of  moneys  tlue  the  Cherokee  Nation  under 
any  of  the  treaties  ratified  in  the  years  1.S17,  IS  19,  1,S!>.5.  Is2s.  lS3.5-3t), 
lsi-6,  iStJt),  and  186s,  and  any  laws  passed  by  the  Congress  of  the 
United  States  for  the  ])urposc  of  carrying  said  treaties,  or  any  of 
them,  into  effect;  and  upon  such  accounting,  should  the  Cherokee 
Nation,  by  its  national  eouncil.  conelude  and  determine  that  such 
accounting  is  incorrect  or  unjust.  tlxMi  the  Cherokee  Nation  shall  have 
the  rio-ht,  within  twelve  montii>-.  to  enter  suit  against  the  United  States 


28 

ill  the  Court  of  Claims,  with  the  right  of  appeal  to  the  Supreme  Court 
of  the  United  States  by  either  party,  for  any  alleged  or  declared 
amount  of  money  promised  but  withheld  by  the  United  States  from 
the  Cherokee  Nation,  under  any  of  said  treaties  or  laws,  which  may 
be  claimed  to  be  omitted  from,  or  imj^roperl}"  or  unjustly  or  illegally 
adjusted  in,  said  accounting;  and  the  Congress  of  the  United  States 
shall  at  its  next  session,  after  such  case  shall  be  finally  decided  and 
certitied  to  Congress  according  to  law.  appropriate  a  sutticient  sum  of 
money  to  pa}"  such  judgment  to  the  Cherokee  xsation,  should  judgment 
be  rendered  in  her  favor;  or  if  it  shall  be  found  upon  such  account- 
ing that  any  sum  of  monex'  has  been  so  withheld,  the  amount  shall  be 
duly  appropriated  by  Congress,  payable  to  the  Cherokee  Nation,  upon 
the  order  of  its  national  council,  such  appropriation  to  be  made  by 
Congress,  if  then  in  session,  and  if  not,  then  at  the  session  immedi- 
ately following  such  accounting.'''' 

Fifth.  That  certain  citizens  of  the  Cherokee  Nation  should  have  the 
right  to  select  lands  as  homesteads  under  certain  conditions;  and 

Sixth.  In  addition  to  all  of  the  foregoing  enumerated  considerations 
for  the  cession  and  relinquishment  of  title  to  the  described  lands,  the 
United  States  shall  pay  to  the  Cherokee  Nation,  at  such  times  and  in 
such  manner  as  the  Cherokee  national  council  shall  determine,  the 
sum  of  $8,595,736.12  in  excess  of  the  sum  of  §T2S,3S9.-±0,  the  aggregate 
of  amounts  heretofore  appropriated  by  Congress  and  charged  against 
the  lands  of  the  Cherokees  west  of  the  Arkansas  River. 

Said  articles  of  agreement  were  accepted,  ratified,  and  confirmed  on 
the  part  of  the  Cherokee  Nation  by  an  act  of  the  national  council 
approved  January  4,  1802,  and  were  also  accepted,  ratified,  and  con- 
firmed on  the  part  of  the  United  States  l:)v  act  of  Congress  of  March 
3,  1898  (27  Stat.  L.,  610). 

Prior  to  the  acceptance  and  ratification  of  said  agreement  on  the 
part  of  the  United  States,  as  aforesaid,  the  commissioners  on  behalf 
of  the  United  States,  as  required  by  the  law  under  which  thev  were 
appointed,  had  reported  to  the  President  the  making  of  the  articles  of 
agreement  aforesaid,  and  by  way  of  explanation  said: 

•"As  to  the  conditions  of  the  agreement,  besides  the  relinquishment 
of  title  upon  the  one  part  and  the  payment  of  a  price  in  money  on  the 
other,  it  is  necessary  to  state  that  the  settlement  of  the  matters  con- 
tained in  such  conditions  were  made  a  condition  precedent  to  any  agree- 
ment for  the  sale  of  the  land. 

"The  accounting  provided  for  in  the  fourth  subdivision  of  article  2 
of  the  agreement  is  inserted  and  agreed  to,  because  the  Cherokees  are 
compelled  to  accept  the  construction  of  the  treaties  made  by  the  exec- 
utive and  administrative  branches  of  the  Government. 

''Whatever  that  construction  is,  the  Indian  must  abide  l)y  [^t]- 
There  is  no  appeal  except  to  Congress.  Without  going  specifically 
into  details  the  Cherokees  claim  that  upon  a  just  accounting  upon  a 
proper  construction  of  the  treaties  named,  a  large  sum  of  money,  prin- 
cipal and  interest,  will  be  found  due  them.  They  also  desire  to  include 
lands  as  well  as  money,  but  they  were  induced  to  eliminate  'lands' 
from  the  provision.  With  that  eliminated  the  provision  was  agreed 
to.  as  set  out.  The  Government  has  made  the  accounting,  has  kept 
the  books,  has  construed  the  treaties.     If  that  has  lieen  done  properly, 


2\) 

no  harm  can  come  from  resttitino-  the  aecoiiiit.  It'  it  has  not  Ixmmi  (h)iic 
properly,  no  possil>le  reason  can  exist  why  the  error  shouM  not  he 
corrected."     (Sen.  Ex.  Doc.  .■>•>.  .^iM  Conu-. .  1st  sess..  pp.  IL.  \-J.) 

Gen.  Thomas  J.  ^lorg-an.  Commissioner  of  Indian  Atiairs.  in  his 
rei)ort  to  the  Secretary  of  the  Interior  on  Fel)rLiary  <).  Is'.t2.  made  the 
fohowiny  exphmation  and  connncnt  on  the  fourth  section  of  article  i'. 
to  wit: 

'"The  fourth  section  of  article  2  provides  for  an  accountinu'  l)et\veen 
the  Tnited  States  and  the  Cherokee  Nation.  The  work  necessar}-  to 
render  this  account  will  l)e  very  hea\y.  and  much  time  will  t)e  neces- 
sary to  properly  prepare  the  same.  On  this  provision  of  the  a,Li'ree- 
meut  the  conmiissioners  say: 

"The  Government  has  made  the  accountino-.  has  kept  the  l)ooks. 
has  construed  the  treaties.  If  this  has  been  done  properly  no  harm 
can  come  from  restating-  the  account.  If  it  has  not  been  done  properly 
no  possible  reason  can  exist  why  tlie  error  should  not  be  corrected. 
It  creates  no  new  oblig-ations  against  the  Government.  l)ut  only  pro- 
vides for  legal  discharge  of  the  old  ones. 

"This  seems  to  me  to  be  a  reasonable  view  to  take  of  this  pro^•ision. 
and  1  do  not  see  that  any  valid  objection  could  be  advanced  against  it. 

"  In  your  reference  of  the  matter  to  this  office  you  said: 

"  '  Particular  attention  is  called  to  section  -i  of  article  '2  of  the  agree- 
ment, with  request  for  a  full  report  as  to  what  may  be  the  state  of  the 
account  between  the  United  States  and  the  Cherokees,  if  practicable, 
within  a  reasonable  time;  if  not,  your  general  conclusions." 

'^  In  reply  to  this  indorsement  I  have  the  honor  to  sa^'  that  if  this 
section  is  construed  to  require  the  United  States  to  state  an  account  of 
moneys  stipulated  to  be  paid  to  the  Cherokee  Nation,  under  the  treaties 
therein  specitied  and  under  the  various  appropriation  acts  to  carry  the 
same  into  etiect,  this  account  could  ))e  prepared  by  this  office  within  a 
reasonal>le  time,  say.  about  two  months.  If.  on  the  other  hand,  it  be 
construed  to  recpiire  a  detailed  statement  of  all  the  moneys  received 
and  dist)ursements  made  by  the  United  States  of  the  Cherokee  funds 
under  said  treaties  and  acts  of  Congress,  which  seems  to  me  to  be  the 
intention  of  the  parties  negotiating  the  agreement,  it  would  re(^uire 
the  services  of  an  expert  accountant,  with  assistants,  probably  twelve 
months  or  more  to  review  and  copy  the  Cherokee  accounts  and  records 
running  back  nearly  a  contui'v.  In  order  to  prepare  a  statement  of 
this  kind  it  would  re([uire  an  appro})riation  l)y  Congress  of  the  sum  of 
at  least  S.^.doo  to  pay  for  the  services  of  an  expert  accountant,  and  in 
the  draft  of  a  bill  for  the  ratirication  of  the  agreement  herewith  inclosed. 
1  ha\e  ])rovided  for  the  approi)riatioii  of  that  sum.  or  so  nmch  thereof 
as  may  be  necessary  for  that  ])urpose.'"  (Senate  Ex.  Doe.  No.  '>>>. 
52d  Cong..  1st  sess..  p.  s. ) 

This  report  of  the  Conunissioiiers  w;is  on  or  al»out  February  s.  18'.t:2. 
referred  by  the  Secretary  of  the  Interior  to  the  Assistant  Attorney- 
General  for  the  Interior  Department  "for  his  consideration  and  re])ort 
upon  the  legality  of  the  contract,  the  sutHciency  of  the  proposed  liill, 
and  his  \iews  upon  the  question(s)  of  law  lelating  to  the  subject."  and 
on  oi'al>out  Fel)ruarv  2b.  ls'.'i\  >;iid  othcer  reported  thereon,  as  ai)j)ears 


30 

in  .said  Senate  Executive  Document  56.  Fifty-second  Congress,  tirst 
session,  sa3"ing-,  among-  other  things: 

"The  report  and  agreement  were  referred  to  the  Commissioner  of 
Indian  Affairs,  who,  under  date  of  February  6,  1892,  reported  favor- 
ably on  the  agreement,  and  transmitted  with  his  report  the  draft  of  a 
l)ill  to  be  submitted  to  Congress  to  I'atity  and  carry  out  the  provisions 
thereof.  '^  *  "^  The  agreement  contains  two  articles.  The  first 
relates  to  the  cession  and  the  second  to  the  consideration  therefor. 

*        tS-        -a 

'"The  considerations  for  said  cession,  as  contained  in  article  2,  are 
set  forth  luider  six  subdivisions.     *     "      " 

''The  fourth  and  next  provision  of  article  2  of  the  agreement 
requires  the  United  States  to  render  to  the  Cherokee  Nation  a  com- 
plete accounting  of  all  money  agreed  to  be  paid  to  the  Indians  or 
which  they  may  be  entitled  to  under  any  treaty  or  act  of  Congress 
since  1817.  And  if  said  accounting  is  satisfactory  Congress  shall  make 
the  necessary  aiDpropriation  to  pay  the  same.  But  if  the  accounting 
is  not  satisfactory,  then  the  Cherokees  to  have  the  right  to  institute 
suit  in  the  Court  of  Claims  against  the  United  States  for  the  claimed 
amount,  and  Congress  is  to  make  the  necessary  appropriation  to  pay 
the  judgment,  if  any,  recovered. 

"I  see  nothing  in  the  stipulations  herein  to  comment  upon.  It 
seems  right  and  promotive  of  good  feeling  that  there  should  be  a  full 
and  final  settlement  of  all  claims  and  accounts  of  these  Indians  against 
the  United  States,  and  I  think  the  terms  of  agreement  are  sufficiently 
clear  to  secure  such  accounting. 

"'The  Commissioner  of  Indian  Affairs  asks  for  a  special  appropria- 
tion of  15,000  to  enable  him  to  make  the  accounting.'"' 

All  of  these  reports  were  ))efore  the  Congress  when  it  accepted  and 
ratified  said  articles  of  agreement  by  act  of  March  3,  1893  (27  Stat.  L., 
641),  in  the  following  language,  to  wit: 

""Which  said  agreement  is  fully  set  forth  in  the  message  of  the 
President  of  the  United  States,  communicating  the  same  to  Congress, 
known  as  Executive  Document  No.  56  of  the  first  session  of  the  Fifty- 
second  Congress,  the  lands  referred  to  being  commonly  known  and 
called  the  'Cherokee  Outlet;'  and  said  agreement  is  hereby  ratified 
T)y  the  Congress  of  the  United  States,  subject,  however,  to  the 
Constitution  and  laws  of  the  United  States  and  to  acts  of  Congress  that 
have  been  or  may  be  passed  regulating  trade  and  intercourse  with  the 
Indians,  and  subject  also  to  certain  amendments  thereto,  as  follows: 
"     '■*     *     (Amendments  not  important  here.)     "     *     '". "" 

''And  the  provisions  of  said  agreement  so  amended  shall  be  fidly 
performed  and  carried  out  on  the  part  of  the  United  States;  provided 
that  the  money  hereb}"  appropriated  shall  be  immediately  available, 
and  the  remaining  sum  of  eight  million  three  hundred  thousand  dol- 
lars, or  so  nnich  thereof  as  is  required  to  carry  out  the  provisions  of 
said  agreement  as  amended  and  according  to  this  act.  to  be  payable  in 
five  equal  instalments,  commencing  on  the  fourth  day  of  March,  eigh- 
teen hundred  and  ninety-five,  and  ending  on  the  fourth  day  of  March, 
eighteen  hundred  and  ninety-nine,  said  deferred  payments  to  bear 
interest  at  the  rate  of  four  per  centum  per  annum,  to  be  paid  annuall}', 


81 

and  the  amount  required  for  the  payment  of  interest  as   aforesaid  is 
here  by  a  impropriated ;" 

*  »  *  -X-  77  *  * 

"The  acceptance  b}'  the  Cherokee  Nation  of  Indians  of  any  of  the 
money  appropriated  as  herein  set  forth  shall  be  considered  and  taken 
and  shall  t)perate  as  a  ratification  by  said  Cherokee  Xiition  of  Indians 
of  said  agreement,  as  it  is  herel»y  proposed  to  l>e  amended,  and  as  a 
full  and  complete' relinquishment  and  extinguishment  of  all  their  title, 
claim,  and  interest  in  and  to  said  lands;" 

"And  said  lands,  except  the  portion  to  be  allotted  as  provided  in 
said  agreement,  shall,  upon  the  payment  of  the  sum  of  two  hundred 
and  ninety-five  thousand  seven  hundred  and  thirty-six  dollars,  herein 
appropriated,  to  be  immediately  paid,  become,  and  l)e  taken  to  be  and 
treated  as  a  part  of  the  public  domain. 

XIX. 

By  said  act  of  March  3,  1893,  ratifying  said  agreement  for  the  pur- 
chase of  the  "Cherokee  Outlet"  the  Congress  also  provided  as  follows: 

"The  sum  of  live  thousand  dollars,  or  so  much  thereof  as  may  be 
necessary,  the  same  to  be  immediately  available,  is  hereby  appropri- 
ated, out  of  any  moneys  in  the  Treasury  not  otherwise  appropriated, 
to  enable  the  Commissioner  of  Indian  Ati'airs,  under  the  direction 
of  the  Secretar}'  of  the  Interior,  to  employ  such  expert  person  or 
persons  to  properly  render  a  complete  account  to  the  Cherokee  Nation 
of  moneys  due  said  nation,  as  required  in  the  fourth  subdivision  of 
.article  2  of  said  agreement." 

Thereafter  flames  A.  Slade  and  fJoseph  T.  Bender  were  employed 
as  experts  under  the  provisions  of  said  section  of  said  act,  and  they 
made  and  rendered  an  account  pursuant  to  the  provisions  of  paragraph 
4  of  article  2  of  the  articles  of  agreement  of  Decend)er  U»,  l,si»l.  as  rati- 
fied and  affirmed  bv  said  act  of  ^larch  3.  1893.  Said  account  was  by  the 
Secretary  of  the  Interior  referred  to  the  Commissioner  of  Indian  A  Hairs 
for  examination  and  report.  ;ind  the  same  having  been  examined  and 
approved  by  said  Conmiissioner,  was  by  the  latter  returned  to  the  Sec- 
retary of  the  Interior,  who  transmitted  the  same  to  the  Cherokee  Nation 
by  deli\ering  a  copy  thereof  to  K.  F.  A\'yley,  its  properly  constituted 
agent  for  receiving  the  same,  and  said  accoiuit  so  made,  rendered, 
and  transmitted  w;is  accepted  by  the  Cherokee  Natiou  by  an  act  of 
its  national  council  approved  Decendier  1, 1891,  and  no  suit  was  there- 
after l)rought  by  the  Cherokee  Nation  against  the  United  States  charg- 
ing that  said  account  was  in  anywise  incorrect  or  unjust.  ])ut.  on  tlu> 
contrary,  the  princi])al  chief  of  the  Clun-okee  Nation,  as  I'equired  by 
the  act  of  its  national  council  above  referred  to,  did  notify  the  Sec- 
retary of  the  Interior  of  the  acceptance  1)V  said  nation  of  said  account 
as  so  slated  l)y  Messrs.  Slade  and  Bender,  and  did  rcMpiest  ^aid  Sec- 
retary of  the  Interior  to  notify  the  Congress  of  th<'  I'ldted  States  of 
such  acceptance,  and  on  the  Tib  of  January,  ls:i:i.  the  Secretary  of  the 
Interior  reported  the  entire  matter  to  the  Congri'ss  in  the  following 
words: 

"Sir:  I  have  the  honor  to  herewith  transmit,  in  conqdiance  with 
the  pi'ovisions  of  the  third  subdivision  of  article  '2  of  tlie  agreement 


32 

made  December  10,  1801,  with  the  Cherokee  Indians,  ratified  bv  the 
act  of  Congress  approved  March  3,  1803  (liT  Stats..  613),  a  certified 
copv  of  'a  complete  account  of  moneys  due  the  Cherokee  Nation  under 
any  of  the  treaties  made  in  the  years  1817,  1810,  1825,1833,1835-36, 
1816,  iSfiG.  and  1868,  and  any  laws  passed  b}-  the  Congress  of  the 
United  States  for  the  purj)ose  of  carrying  said  treaties,  or  any  of  them, 
into  efi'ect,-  prepared  in  accordance  with  the  provisions  of  the  said  act 
of  ^Nlarch  3. 1803,  together  witli  a  certified  copy  of  an  act  of  Cherokee 
national  council  accepting  such  accounting. 

'*The  Speaker  of  the  House  of  Representatives."  (House  Ex.  Doc. 
Xo.  182.  53d  Cong.,  3d  sess.) 

XX. 

The  report  and  accounting  made  by  said  James  A.  Slade  and  Joseph 
T.  Bender,  referred  to  in  the  foregoing  finding,  is  in  the  words  and 
figures  which  appear  in  House  Executive  Document  182.  Fifty-third 
Congress,  third  session.     The  conclusion  thereof  is  as  follows: 

"  The  foregoing  statement  covers,  it  is  believed,  every  point  at  issue 
which  can  be  raised  under  the  treaties  described  in  the  articles  of 
agreement:  [a  number  of  demands  made  by  the  Cherokee  Nation  were 
disallowed],  and  the  result  of  the  finding  is  submitted  in  the  following- 
schedule: 

"  Under  the  treaty  of  1819: 

"  Value  of  three  tracts  of  land  containing  1,700  acres,  at  Si.  25  jier 

acre,  to  be  added  to  the  principal  of  the  '  School '  fund 82, 125.  00 

"  ( With  intere.st  from  Februar}'  27,  1819,  to  date  of  payment.  ) 
"  Under  treaty  of  18;>5: 

"Amount  paid  for  removal  of  Eastern  Cherokee.s  to  the  Indian 

Territory,  improperly  charged  to  treaty  fund 1,111.  284.  70 

"  (With  interest  from^  June  12,  18;j8,  to  date  of  payment.  I 
"  Under  tieaty  of  1866: 

"  Amount  received  Ijy  receiver  of  public  moneys  at  Independence, 

Ivans. ,  never  credited  to  Cherokee  Nation 4)32.  28 

'•  (  With  interest  from  January  1,  1874,  to  date  iif  i)ayment. ) 
"  Under  act  of  Congress,  ^larch  13,  189:3: 

'"Interest  on  815,000  of  Choctaw  funds  applied  in  186:3  to  relief  of 
indigent  Cherokees,  said  interest  being  improperly  charged  to 

Cherokee  national  fund 20,  406.  25 

'•(With  interest  from  July  1,  189.3,  to  date  of  restoration  of  the 
I>riucipal  of  the  Cherokee  funds,  held  in  trust  in  lieu  of  invest- 
ments. )" 

Washington.  D.  C.  April  2><.  1801. 

(Signed)  Jas.  A.  Slade. 

Jos.  T.  Bender. 
XXI. 

In  arriving  at  the  item  of  SI.  111,281.70  the  accountants  among 
other  ta))ulations  made  the  following  statement  of  the  account: 

•'  Figuring  upon  the  basis  stated  in  the  ninth  article  of  the  treaty  of 
1816.  and  following  the  Auditor's  and  Comptroller's  figures  in  the 
accounting  of  December  3.  1810.  and  eliminating  from  the  charges 
made  against  the  total  fund  of  '¥6.617,t>67,  the  excess  of  payments  over 
the  amounts  appropriated  by  the  United  States  for  that  purpose,  the 
true  statement  of  the  account  is  as  follows: 


83 

For  iiiiproveiiients s] ,  540.  572.  27 

For  ferries 1 59,  572,  1 2 

For  gpoliations 264,  .s94.  09 

For  removal  and  suljsistenee,  l)eing  the  amount  aetu- 
allv  provided  and  expended  for  these  purposes,  and 

I  S.335  105  911 

consisting  of  the  following  items <^  '',\,-'  r,,—'  aaI-     1,  '■^>^-,  172.  91 

'^  '-  ll,  04/,  Ob(.  00)        '        ' 

For  debts  and  claims  ujion  the  Cherokei'  Nation 1 01 ,  :US.  .31 

For  the  additional  (juantity  of  land  ceded  t.  >  the  nation 500.  000.  00 

For  amount  invested  as  tlie  general  fund  of  the  nation 500.  SSO.  00 

For  subsistence  furnished  after  expiration  of  one  year,  under  agree- 
ment .that  it  should  be  charged  to  treatv  fund 172.  .'ilH.  47 


4,621,750.  17 

For  lands  and  possessions 5,  000.  000.  ( lO 

For  spoliations 2(>4,  894.  09 

Balance  of  S600.000  applicable  to  removal ;->.35,  105.  91 

Appropriation  of  June  12,  1838 1,  047.  067.  00 


6,  647,  067.  00 
From  which  deduct  charges  as  above 4,  621,  756. 17 


Balance  to  be  distriliuted  jier  capita 2,  025,  310.  83 

Deduct  amount  actually  distriliuted  as  ab-eady  explained 014.  026.  13 

Balance  due 1.111,  284.  70 

The  sum  of  S914:.t)26.13.  actiuilly  di.stri bated  to  the  Ea.stern  Chero- 
kee.s  in  1852,  out  of  the  above  balance  of  82,(>25.310.83.  wa.s  appropri- 
ated as  follows: 

Amount  found  due  by  Treasury  officials,  under  article  9,  1846,  in  tlie 

report  of  the  Auditor  and  Comptroller  of  December  3,  1849 SH27,  603.  95 

Erroneous  charge  corrected  by  act  of  Feliruary  27,  1851 96.  999.  42 

Erroneous  charge  account  subsistence,  corrected  bv  Congress,  Septem- 
ber 30.  1850 - - 189,  151 .  24 


914.026.13 

This  amount  of  §914.02(1.13  was  di.stributed  solely  to  14.098  Eastern 
Cherokees  in  the  ^^'est  and  2.133  P^astern  Cherokees  who  remained  East. 

Interest  on  the  above  sum  of  S9l-±,U26.13  at  5  per  cent  from  June 
12.  1838.  was  also  appropriated  by  Congress  and  distributed  per  capita 
to  .said  Eastern  Cherokees  in  the  same  payment.  The  balance  to  be 
distriliuted  per  capita  according-  to  the  above  report  and  which  was 
not  distributed,  to  wit,  $1,111,284.70,  is  the  sum  of  which  the  Eastern, 
Cherokees  complain  they  were  deprived  in  the  settlement  of  1852:  that 
while  they  received  only  §5H.31  per  capita,  excluding-  interest,  they 
should  have  received  the  further  sum  of  Si, 111. 284. TO.  or  a  total  of 
§2. 025. 310. 83.  as  appears  in  the  tibove  account  rendered  as  the  true 
balance  under  article  9.  making-  them  a  total  per  capita  of  S124.  "s. 

The  settlement  made  with  the  Old  Settlers  was  as  set  forth  in 
Finding-  XVlll. 

XXII. 

Neither  the  whole  nor  any  portion  of  the  various  sums  m  ith  interest 
found  and  stated  by  the  concluding-  schedule  of  the  so-called  Slade- 
Bendei  report  to  be  due  to  the  Cherokee  Nation  under  the  treaties  and 
acts  of  Congress  therein  referred  to  have  been  paid  to  the  Cherokee 
Nation,  or  to  any  ofhcer.  agent,  or  othei'  person  acting  in  its  behalf. 

With  the  exception  of  the  provision  contained  in  the  act  of  ^larch 
2.  1895,  making  appropriations  for  the  legislative,  executive,  andjudi- 


34 

cial  expenses  of  the  Government,  directing  the  Attorney-General  to 
review  and  report  npon  the  conclusion  of  law  disclosed  in  the  account 
of  Slade  and  Bender,  and  the  passing-  of  the  provisions  of  the  acts  of 
Jidy  1,  1902,  and  March  3,  1U03,  conferring  jurisdiction  upon  the 
United  States  Court  of  Claims  to  hear  and  determine  these  causes,  the 
Congress  has  taken  no  action  whatever  with  respect  to  the  said  account 
of  Slade  and  Bender  or  the  amounts  found  due  thereunder. 

Acting  under  said  direction  of  March  2,  1895,  above  referred  to, 
the  Attorney-General  of  the  United  States,  on  December  2,  1895, 
addressed  a  communication  to  the  Congress  wherein  he  advised  that 
body  of  his  disagreement  with  the  conclusions  reached  by  said  Slade 
and  Bender.  Said  communication  of  the  Attorney-General  was,  on 
Decemljer  2,  1895,  ))y  the  Congress  referred  to  the  Committee  on 
Indian  Affairs  and  ordered  to  be  printed,  and  the  same  appears  in 
Senate  Executive  Document  No.  16,  Fifty-fourth  Congress,  lirst 
session. 

XXIII. 

The  total  acreage  ceded  by  the  Cherokee  people  to  the  United  States 
at  various  times,  as  appears  from  Royce's  History  of  the  Cherokees 
(see  Report  of  Ethnological  Bureau,  1884),  is  as  follows: 


Date  of  treaty. 


State  where  ceded  lands  are  located. 


October  18, 17 


1721 '  South  Carolina 

November  24,  175,1 do 

October  H,  17(is Virginia 

do 

I  West  Virginia 

Tennessee 

iKentuckv 

.do 

1772 J.  West  Virginia 

[Virginia 

June  1,  1773 Gei:)rgia 

fKentnckv 
March  17,  1 


Virginia 

I^Tennessee 

Mav  20,  1777 Soutli  Carolina. 

Tulv'X)  1777  I  North  Carolina. 

•^"  •  -"•  -^'" ITennessee 

May  31,  17,S3 Georgia 

jXorth  Carolina. 
17,s.5 rPennes.-iee 

iKentueky 

ITennessee 

1  North  Carolina  . 

October-'   17qs  (Tennessee 

uctoDer.,  iijb ^N,,rth  Carolina. 

October  24,  1.S04 Ge 

fKentnckv 

\Tenne 

October  27,  1805 Tennessee 

r....do 

lAlabama 

March  22,  ISIG South  Carolina 


November  2 
Julv  2,  1791 


October  25,  I^Oo 


January  7,  1S06 . 


July  8,  1S17 


February  27,  1819 •  ;r 'l*'?"™ 


Mav  6.  1,S2.H  . 


Tennessee 

North  Carolina  , 

.\rkansas 

Tennessee 


December  29,  1835 


I  Alabama 

INiirth  Carolina  . 
Julv  19,  IStlG  a Kan>as 


Area  in 

Area  in 

square 
miles. 

acres. 

2, 623 

1, 678, 720 

8,635 

5,  .526, 400 

850 

544, 000 

4, 500 

2,  ,880. 000 

4,300 

2,  7.52,  000 

160 

96, 000 

250 

160, 000 

10, 135 

6,  4S6,  400 

437 

279,  6.'^0 

345 

220, 800 

1, 0.50 

672. 000 

22, 600 

14.464.000 

1,800 

1,1,52.000 

2, 650 

1,696,000 

2, 051 

1,012.640 

4,414 

2,824,960 

1,760 

1,126,400 

1,6.50 

1,  0.56.  000 

550 

3.52,  000 

4,914 

3, 144,  960 

917 

,5,86,, S80 

3, 435 

2, 198,  400 

722 

462, 080 

952 

609,  2.80 

587 

375,  6,80 

135 

86, 400 

1,086 

695. 040 

7,032 

4.  .500,  480 

li 

800 

5, 269 

3,072,160 

1,  602 

1,025,280 

148 

94,  720 

3,429 

21, 194,  .560 

4 

2,  .560 

583 

373, 120 

435 

278. 400 

837 

.535,  6,80 

1, 1.54 

738,  .560 

2, 408 

1,-541,120 

1,542 

986, 880 

4,  720 

2, 020,  ,800 

1,484 

949, 760 

7,  202 

4,  609.  2.S0 

2,  518 

1,611,520 

1, 112 

711,680 

1,928 

1,233,920 

126. 906 

.SI,  220, 374 

(H.  R.  Mis.  Doc.  157,  49th  Cong.  2d  sess.,  vol.  10,  p.  378. 


35 

COXCLUSTONS   OF   LAW. 

Upon  the  t'orco-oing-  facts  the  eoui't  conehides  as  matters  of  hiw: 

First*.  That  the  United  iStates  is  indel)ted  to  the  Cherokee  Nation  in 
the  followinu'  amounts,  viz: 

(1)  The  sum  of  ^lMiJ5,  with  interest  at  5  per  cent  from  February 
27,  1S1'.».  to  date  of  payment: 

{•2}  The  sum  of  ^l,111.2S4.7i>,  with  interest  at  5  per  cent  from  -June 
12.  ISoS,  to  date  of  pa^mient: 

(3)  The  sum  of  $132.28,  witli  interest  at  o  per  cent  from  J:iiuiary  1, 
ISTJ:,  to  date  of  payment; 

(•i)  The  sum  of  ^20,406.25.  with  interest  at  5  per  cent  from  -July  1, 
1S1»3,  to  date  of  payment, 

and  is  entitled  to    have    judgment    entered    in    its    favor  against   the 
United  States  therefor. 

Second.  The  proceeds  of  so  nuich  of  said  judg-ment  as  pertains  to 
the  items  numbered  1,  3,  and  -i  e(|uital)ly  belong  to  the  Cherokee  Nation 
as  a  political  or  social  bod}',  and  such  proceeds,  less  any  pro]3ortion 
thereof  which  the  Cherokee  Nation  may  have  contracted  to  pay  on 
account  of  counsel  fees  and  other  expenses  of  this  litigation,  should  ])e 
paid  or  disposed  of  as  follows,  viz : 

(a)  The  amount  represented  by  item  numbered  three  (3)  for  $432. 2n, 
and  interest,  should  be  paid  to  the  treasurer  of  the  Cherokee  Nation, 
or  to  such  other  person  or  ofhcer  either  of  the  nation  or  of  the  United 
States  as  may  hereafter  succeed  to  his  duties; 

(/>)  The  amount  represented  by  item  numbered  one  (J),  for  $2.12.5 
and  interest,  should  be  paid  to  the  Secretary  of  the  Interior  in  trust 
and  credited  on  the  proper  l)Ooks  of  account  to  the  principal  of  the 
"Cherokee  school  fund."  of  which  fund  the  United  States  are  trustees; 

{'■)  The  amount  represented  by  item  numbered  four  (i).  for  $2(  »,l:t  h3.  25 
and  interest,  should  be  paid  to  the  Secretary  of  the  Interior  in  trust 
and  credited  on  the  proper  books  of  account  to  the  "'Cherokee  national 
fund."  of  which  fund  the  United  States  are  trustees; 

('/)  The  amount  represented  l»y  item  numbered  two  (2)  for 
$1,111,284.70  and  interest,  less  counsel  fees  and  expenses,  equitably 
belongs  to  the  Eastern  and  AVestern  Cherokees  who  were  parties 
either  to  the  treaty  of  New  Echota.  proclaimed  May  23,  183(i,  or  the 
treaty  of  Wasiiington.  of  August  (>.  184t3,  as  individuals,  whether  east 
or  west  of  the  Mississippi  Ki\er.  and  sliould  t)e  paid  to  them  or  totlnnr 
legal  representatives  by  the  Secretary  of  the  Interior. 

Third.  Such  counsel  fees  as  may  liave  been  contracted  to  be  paid  by 
the  Cherokee  Nation  in  the  manner  prescri))ed  by  sections  21(»3  to  21<Mi. 
both  inclusive,  of  the  Revised  Statutes  of  the  United  States,  and  such 
other  counsel  fees  and  expenses  as  may  be  allowed  l)v  this  court  i)ur- 
suant  to  the  provisions  of  the  act  of  March  3,  19(>3.  set  forth  in  Find- 
ing- of  Fact  No.  I,  should  be  paid  to  tJK^  parties  entitled  to  receive  the 
same  by  the  Secretary  of  the  Ti-easury  upon  the  making  of  an  appro- 
priation l)v  Congress  for  the  payment  of  the  judgment  in  this  cause. 

F()urth.  The  cost  and  expenses  incident  to  ascertaining  and  identi- 
fying the  individuals  entitled  to  participate  in  the  distribution  of  the 
balance  of  the  amount  represented  l)y  item  numbered  two  (2).  and  the 
making  of  the  distribution  thereof,  should  be  a  charge  u]ion  >uch 
balance  for  distril)ution  and  shouM  be  deducted  thei'efrom. 


COTJE.T    O^    GL^.IlVnS 


No.  2yi9y. 
THE  CHEROKEE  NATION  v.  THE  UNITED  STATES. 

No.  23214. 

THE  EASTERN   CHEROKEES  v.  THE   UNITED   STATES 
AND  THE  CHEROKEE  NATION. 

No.  23212. 

THE   EASTERN  AND   EMIGRANT  CHEROKEES  v.  THE 
UNITED  STATES. 


JUDGMENT    ENTERED   MAY    IS.    1905. 

The  above  causes,  on  motion  and  by  consent  of  the  parties,  having 
heretofore  been  consolidated  for  purposes  both  of  hearing  and  judg- 
ment by  appropriate  order  of  this  court,  came  on  to  be  heard  upon 
the  pleadings,  orders,  and  proofs,  and  were  argued  by  Messrs.  Charles 
Nagel,  Edgar  Smith,  and  Frederic  D.  McKenney.  on  behalf  of  the 
Cherokee  Nation;  Messrs.  Robert  L.  Owen  and  AMlliam  H.  Robeson, 
on  behalf  of  the  Eastern  Cherokees;  Mrs.  Belva  A.  Lockwood,  on 
behalf  of  certain  individual  claimants,  styled  Eastern  and  Emigrant 
Cherokees,  and  Mr.  Assistant  Attorney-General  Pradt.  on  behalf  of 
the  United  States;  and  the  court  being  now  sufficiently  advised  in  the 
premises,  it  is,  this  ISth  day  of  May,  A.  D.  1905.  adjudged,  ordered, 
and  decreed  that  the  plaintitf,  the  Cherokee  Nation,  do  have  and  recover 
of  and  from  the  United  States  as  follows: 

Item  1.  The  sum  of ?2, 125.  00 

With  interest  thereon  at  the  rate  of  5  per  cent  from  February  27. 
1819,  to  date  of  payment. 

Item  2.  The  sum  of 1 .  Ill,  284.  70 

With  interest  thereon  at  the  rate  of  5  per  cent  from  June  12,  1S3S, 
to  date  of  payment. 

Item  o.  The  sum  oi' 432.  28 

With  interest  thereon  at  the  rate  of  5  per  cent  from  January  1, 
1874.  to  date  of  payment. 

Item  4.  The  sum  of .' 20.  406.  25 

With  interest  thereon  from  Julyl,  1903,  to  date  of  payment. 

36 


37 

the  proceeds  of  .said  several  items,  however,  to  be  paid  and  distriliuted 
as  follows: 

The  sum  of  '^"2,125  with  interest  thereon  at  the  rate  of  5  per  cent 
from  February  27,  ISIO,  to  date  of  pavment.  less  5  per  cent  thereof 
contracted  by  the  Cherokee  Nation  to  be  paid  as  counsel  fees,  shall  be 
paid  to  the  Secretary  of  the  Interior  in  trust  for  the  Cherokee  Nation 
and  shall  .be  credited  on  the  proper  books  of  account  to  the  principal 
of  the  "Cherokee  school  fund"  now  in  the  possession  of  the  United 
States  and  held  by  them  as  trustees. 

The  sum  of  $432.28  with  interest  thereon  at  the  rate  of  5  per  cent 
from  January  1.  ls71,  to  date  of  payment,  less  5  percent  thereof  con- 
tracted by  the  Cherokee  Nation  to  be  paid  as  counsel  fees,  shall  be 
paid  to  the  Cherokee  Nation  to  be  received  and  receipted  for  })v  the 
treasurer  or  other  proper  agent  of  said  nation  entitled  to  receive  it. 

The  sum  of  •§20.4:<)6.2o,  with  interest  thereon  at  the  rate  of  5  per 
cent  per  annum  from  July  1.  1893.  to  date  of  pavment,  less  5  percent 
thereof  contracted  by  the  Cherokee  Nation  to  be  paid  as  counsel  fees, 
shall  be  paid  to  the  Secretary  of  the  Interior  and  credited  on  the  proper 
l)Ooks  of  account  to  the  principal  of  the  ''Cherokee  national  fund." 
now  in  the  possession  of  the  United  States  and  held  by  them  as  trustees. 

The  sum  of  81,111.284.70,  with  interest  thereon  from  June  12,  1838. 
to  date  of  payment,  less  such  counsel  fees  as  may  be  chargeable  against 
the  same  under  the  provisions  of  the  contract  with  the  Cherokee 
Nation  of  January  16,  1903,  and  such  other  counsel  fees  and  expenses' 
as  may  be  hereafter  allowed  bv  this  court  under  the  provisions  of  the 
act  of' March  3,  1903  (32  Stat.."  996),  shall  be  paid  to  the  Secretary  of 
the  Interior,  to  be  by  him  received  and  held  for  the  uses  and  purposes 
following: 

First.  To  pay  the  costs  and  expenses  incident  to  ascertaining  and 
identifying  the  persons  entitled  to  participate  in  the  distribution  thereof 
and  the  costs  of  making  such  distributii^i. 

Second.  The  remainder  to  be  distributed  directly  to  the  E^astern 
and  Western  Cherokees,  who  were  parties  either  to  the  treaty  of  New 
Echota,  as  proclaimed  May  23.  1836,  or  the  treaty  of  AVashington  of 
August  6,  1846,  as  individuals,  whether  east  or  west  of  the  Mississippi 
River,  or  to  the  legal  representatives  of  such  individuals. 

So  much  of  any  of  the  above-mentioned  items  or  amounts  as  the 
Cherokee  Nation  shall  have  contracted  to  pay  as  counsel  fees  under 
and  in  accordance  with  the  provisions  of  sections  2103  and  2106,  borh 
inclusive,  of  the  Revised  Statutes  of  the  United  States,  nd  so  much 
of  the  amount  shown  in  item  numbered  two  (2)  as  this  court  hereafter 
by  appropriate  order  or  decree  shall  allow  for  counsel  fees  and 
expenses  under  the  provisions  of  the  act  of  March  3,  1^03,  above  referred 
to,  shall  be  paid  by  the  Secretary  of  the  Treasury  to  the  persons  enti- 
tled to  receive  the  same  upon  the  making  of  an  appropriation  1)y  Con- 
gress to  pay  this  judgment. 

The  allowance  of  fees  and  expenses  liy  this  court  under  said  act  of 
March  3,  19<»3.  is  reserved  until  the  coming  in  of  the  mandate  of  the 
Supreme  Court  of  the  United  States. 


O 


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